SALLINGS & ZIEMANN - [2019] FamCAFC 135

FAMILY COURT OF AUSTRALIA

SALLINGS & ZIEMANN

[2019] FamCAFC 135

FAMILY LAW – APPEAL – PARENTING – Where orders were in place for the mother to have sole parental responsibility of the children and they spend specified time with the father – Where the father contended that the children were at physical and psychological risk from – Where no risk found – Where the oldest child has significant mental health issues – Where the father contends the child is not receiving appropriate medical care and attention – Where the primary judge found the child’s treatment was appropriate and medically approved – Where the father challenges the apportionment of weight given to the evidence and challenges the exercise of discretion - Where the father’s grounds do not expose appealable error – Appeal dismissed – Costs ordered in favour of the mother.

Family Law Act 1975 (Cth)

Bahonko v Sterjov (2008) 166 FCR 428; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Tszyu v Fightvision Pty Ltd (2001) 104 IR 225; [2001] NSWCA 103

APPELLANT:

Mr Sallings

RESPONDENT:

Ms Ziemann

INDEPENDENT CHILDREN’S LAWYER

JennyBoulton Solicitors

FILE NUMBER:

CAC

1296

2015

APPEAL NUMBER:

NOA

104

2018

DATE DELIVERED:

9 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

25 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 October 2018

LOWER COURT MNC:

[2018] FCCA 2939

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Gordon

SOLICITOR FOR THE RESPONDENT:

M A Kent & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Georges

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

JennyBoulton Solicitors

Orders

The appeal against the orders of Judge Turner made on 19 October 2018 is dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $12,000.

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 Sallings & Ziemann 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 104 of 2018
File Number: CAC 1296 of 2015

Mr Sallings

Appellant

and

Ms Ziemann

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Sallings (“the father”) appeals against parenting orders made by a judge of the Federal Circuit Court on 19 October 2018. Ms Ziemann (“the mother”) opposes the appeal.
The parties are parents of four children, W (aged nearly 12), X (aged 10), Y (aged 7) and Z (aged about 4 ½).

Background

It is useful to consider the background to the dispute and her Honour’s findings to give context to the appeal.
The parties began to live together in 2004 and separated in mid 2015. From that date and at the time of the hearing before the primary judge, the children lived with the mother. Although at separation both parties were living in Canberra, in December 2015 the mother moved with the children to live in Brisbane. The father remained living in Canberra.
In August 2015 the parties reached agreement as to the settlement of their property and as to aspects of parenting. In particular in relation to parenting, the parties agreed that the children live with the mother, she have sole parental responsibility for them and she be permitted to move to Brisbane with the children. The parties agreed that the children would spend time with the father as agreed between the parties.
In 2017 the father commenced proceedings for parenting orders. He alleged that the children were at risk of physical and psychological abuse while living with the mother.
Interim consent orders were made in June 2017 which provided for the children live with the mother and for them to spend specified times with the father over June and July of 2017.
There was an altercation between the parties in November 2017 and as a result the mother sought and obtained a Domestic Violence Order against the father for her protection and for the four children for a period of five years.
When the matter came before the primary judge for final hearing the parties agreed that the issues for determination by her Honour were: whether the parties should have equal shared parental responsibility for the children, the time and manner in which the children would spend time with the father both in person and by Skype and whether the children would be permitted to travel overseas with the father.
The father did not seek an order that the children live with him.
Her Honour found that the children have a meaningful relationship with both parties, that the children whose views were expressed, enjoyed living with the mother and spending time with the father and that the children have a strong, loving relationship with each party (at [87] and [97]).
Although the parties agreed as to the issues in dispute before her Honour, those issues raised a number of significant matters for resolution.

Risk

The father alleged that the children were at risk in the mother’s household because she suffers from mental health issues, in particular she has been diagnosed as having Bi-Polar Affective Disorder and Attention Deficit Hyperactivity Disorder (“ADHD”). He also contended that the mother’s new partner was “violent”, “hostile” and “obstructive” (at [46] b)).
Her Honour at [46] set out at length the father’s contentions about this asserted risk.
As to the mother’s mental health, her Honour accepted the mother’s account and recorded by the author of the Family Report that while she has been diagnosed with those conditions she has successfully sought and continued medical treatment and advice and in the past has immediately sought professional assistance when she felt she needed it (at [65]-[68]).
Her Honour concluded that there was no risk to the children posed by reason of the mother’s mental health, a view supported by the author of the Family Report. Equally, her Honour dismissed the father’s assertions about the mother’s new partner finding that there was no evidence before the Court to support the father’s assertions.
In coming to her conclusion that the mother posed no risk to the children as the father asserted, her Honour took into account a number of factors including that despite the risk and the articulation of it advanced by the father, he did not seek an order which would have the children moved from the mother’s care. Her Honour noted that the father contended that it would be disruptive to the children to be moved from their mother’s care.
The mother contended that the father poses a risk to the children in that he had perpetrated family violence in that he denigrates and attempts to control her. She said that he had spoken to the children in terms which led them to understand that he did not like her. Although the father denied he had spoken to the children in those terms and suggested that their comments were the result of the mother coaching them, her Honour rejected that denial and placed reliance on the opinion of the Family Report writer who said that she did not believe the children had been coached in what they said.
Her Honour found that the father had engaged in family violence in the sense that he is coercive and controlling of the mother and that this behaviour continues. She further concluded that the children have been exposed to this violence. Nevertheless, her Honour found that the father does not pose an unacceptable risk to the children and found that the children would be protected from that exposure if orders were made which minimised physical contact between the parties.

Medical Treatment of the oldest child

The oldest child has a number of health issues including ADHD and Autism Spectrum Disorder (“ASD”) which result in behavioural difficulties, violent outbursts, sometimes to the extent that the Police have become involved.
The child’s treating doctors have prescribed medication to address the symptoms of his disorders. The father contends that the mother’s adherence to the medication regime has caused the child brain damage and he asserted that the mother uses the medication to control the child’s behaviour for her convenience rather than for the benefit of the child. The father asserted that the child’s condition could be managed without medication (at [126] and [128]).
The father is critical of the mother’s compliance with the treatment regime and contends that she is not, in fact, acting in the best interests of the child.
Her Honour noted that when the child is with him the father does not ensure he takes his medication nor would he if an order was made because in the father’s words, it would be “absurd” (at [131]).
Her Honour further found that the father had spoken to the child about his views about the need for him to take the medication (at [132] – [133]).
Her Honour concluded that there was no basis for the father’s concern that the mother was not meeting the child’s needs and further, found that the mother was following medical directions about the child’s treatment (at [134]). In coming to that conclusion, her Honour clearly accepted the mother’s evidence on this point which was reproduced in part at [129] of her Honour’s reasons.
It followed that her Honour did not accept the father’s assertions about the management of the child’s condition and that she thus questioned whether the father had the capacity to meet that child’s needs (at [138]).

Parental Responsibility

Her Honour acknowledged that the father sought an order for equal shared parental responsibility and, ultimately concluded that it was not in the best interests of the children. Her Honour’s reasons for coming to that conclusion are set out at [179] and include a finding that the father had not been supportive of the mother’s decision making. Parental responsibility had been a source of conflict between the parties in which, her Honour found, the father had involved the children. Her Honour concluded that the mother having sole parental responsibility would avoid the children’s involvement in conflict between the parents.
Thus her Honour found that it was in the best interests of the children for the mother to have sole parental responsibility and for there to be orders which specify the time and manner in which the children would spend time with the father (at [166] and [181]).

The appeal

The father appeared for himself and drew the grounds of appeal and Summary of Argument.
Neither the asserted grounds nor the submissions in support reveal any proper challenge to her Honour’s orders. It is difficult to grasp what the particular challenges to her Honour’s orders are.
For example, Ground 7 set out in the Notice of Appeal (filed 16 November 2018) contends:
The trial judge erred failing to take into account material considerations and issues of fundamental importance, supported by evidence, regarding the Respondent’s behaviour, deceiving the appellant, obstructing the Children’s communication and time with the Father and intent to abuse the process of the Court, including:
(As per the original)
Within Ground 7 there follows 6 particulars of which this is but one example :
a)Repeated and ongoing deception of the Appellant and the Court regarding medical treatment of the Children, documented extensively and repeatedly in evidence (refer to Appellant’s Written submissions) and confirmed under cross examination (egs. statement under oath of the Mother regarding reasons for ceasing [W’s] treatment by Dr [H], directly contradicting email of 14 June 2017 (Annexure AJ of Father’s trial affidavit.) and more recently, after this judgment was made, on October 20, 2018, the mother revealed that she had been medicating [X] with Ritalin for many months, while deceiving the Father about this.
….
(As per the original)
The written argument supporting this ground is:
7.1. S60CC(2)(a) states the primary consideration of the court should be "the benefit to the child of having a meaningful relationship with both of the child's parents". The trial judge failed to uphold this principle in dismissing the extensive evidence of the Mother and [Mr D's] excessive estrangement behaviour regarding the Father and children, and abuse of process of the court to further this damage to a meaningful relationship for the children with their Father.
7.2. On April 12 2019, the Mother was found to have contravened orders for both time with and communication with the children. The Mother also contravened orders regarding informing the father of the living arrangements of the Children, until this contravention was raised with Justice Murphy in a hearing in January 2019.
7.3. These abuses reemphasise the ongoing pattern of the Mother's abuse documented extensively in the evidence provided to the trial judge, evidence that was not given proper weight or acknowledged by the trial judge.
(As per the original)
In Bahonko v Sterjov (2008) 166 FCR 428 , the Full Court of the Federal Court of Australia said:
3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
In my view, the grounds and the submissions do not expose appealable error but rather form a vehicle by which the father continues to assert the correctness of his position and beliefs, the acceptance of which became a prism through which the primary judge’s reasons are attacked in the appeal.
A significant theme in the complaints contained within the grounds 1, 2 and 3 concern her Honour’s findings about the appropriateness of the child’s treatment regime; that the father does not provide the child with the medication during holiday and weekend time; that the mother had kept him informed of the child’s treatment from time to time and that the father had discussed the child’s condition with him in terms that caused the child distress.
As I have indicated, it was the father’s case before the primary judge and maintained in the appeal that the mother was medicating the eldest child with drugs which were dangerous and which can cause, and in this case have caused, significant damage to the child. It was further the husband’s argument before the primary judge that the mother “deceived him” in not providing him with information about the child’s medication and medical treatment, concealed information from him and blocked his access to the child’s treating medical practitioners.
The father contended that he had been advised by one of the child’s treating medical practitioners that it was not necessary for the child be medicated on weekends and school holidays and in not giving the child his medication, the father was complying with the advice of the child’s doctors.
It is important to understand that the mother did not agree with the father’s assertion that she had not kept him informed about the child’s treatment from time to time. The mother said and it is clear that the primary judge accepted her evidence that she had kept the father informed of the child’s medication and provided him with all reports on the child’s condition (at [172] and [179]).
Further the mother said, and, again, her Honour at [129] accepted her evidence, that she had always complied with the directions of the child’s medical practitioners and had complied with the prescribed medication regime.
The acceptance of evidence and the findings of fact based on that evidence is a matter quintessentially for the primary judge. To engage appellate intervention the appellant must show that the judge has failed to use or has palpably misused his or her advantage, or has made findings inconsistent with incontrovertible facts, or has acted on glaringly improbable evidence, or has made findings contrary to compelling evidence. It is not sufficient to contend that other facts ought to have been found (see Edwards v Noble (1971) 125 CLR 296). To the extent that the husband’s appeal rests on a challenge to her Honour’s findings of fact, he has failed to identify any relevant error.
It is also important to understand that the father called no evidence either as to the asserted toxicological effects of the child’s prescribed medication or the nature and characteristics of the drugs prescribed to the child. Rather his contentions about their effect is based on his own asserted expertise and his independent research.
Equally, the father called no evidence from any of the child’s treating medical practitioners either past or present to support his argument that it was not necessary to give the drugs to the child on weekends or during holidays. Instead, he placed significant reliance on a discharge summary prepared when the child was to be discharged from a particular mental health service, which outlined the child’s treatment. Of significance to the father’s case is a comment found in a letter to the mother by Dr J of 15 March 2018:
…Dr [K] specifically suggested that the medications should be avoided in holidays and on weekends, and you should consider “increasing maturation trials off the medication in coming months and year or two should be done to see when it can be ceased”. …
The letter continued and noted that a copy of it had been sent to the child’s General Practitioner who was treating the child at the time of the hearing before the primary judge and who, it can be assumed, monitors the child’s medication. No evidence was called from that General Practitioner.
Dr K’s suggestion became the pivot around which much of the husband’s complaints about her Honour’s orders revolved. By way of example, within Ground 2 of the father’s Summary of Argument, he contends that her Honour made “dangerous errors of judgment” in her conclusion that the father:
130. Unlike the mother, the father has not followed the treating doctor’s recommendations and has not given [W] his medication when the child has been in his care, especially during school holidays.
The father’s written summary argues, referring to this paragraph, that it was “inexplicable” that her Honour came to that conclusion and, he submitted that her Honour’s finding “directly, perversely and dangerously contradicts W’s numerous treating doctors’ recommendations that he have breaks from the dangerous medications he was taking, ‘particularly…in holidays and weekends’”.
There was no dispute and the father conceded the position in cross examination, that he did not give the child medication during holiday times with him. Her Honour’s finding is entirely consistent with the evidence. The real challenge it seems is her Honour’s comment at [132] that the father had “taken it upon himself to determine whether to follow the doctor’s instructions” in relation to the child’s medication.

The father’s position rested on the letter to which I have earlier referred. He argues that in not giving the child medication during weekends and holidays, he was in fact acting on medical advice rather than acting independently.
Whether or not the father believed he had been advised not to give the child his medication on weekends or holidays, is beside the point.
The father not having called any evidence from the particular medical practitioner, it was entirely open to her Honour to prefer the mother’s evidence about the child’s treatment regime and accept her evidence that she followed the advice of the medical practitioners treating the child and make the findings she did.
As to whether the father had spoken to the child about his condition as the mother asserted, her Honour’s findings are based on an acceptance of the mother’s evidence about an incident in which the child returned from visiting with the father in great distress. Her Honour at [133] sets out and accepts the mother’s position which was also expressed in an email to the father at the time. The father contends that the child lied and he criticised the mother for believing the child. Her Honour’s conclusion was entirely open to her on the evidence.
The challenges contained in these grounds are not made out.
Grounds 4, 5, 6 and 8 contend that the primary judge gave too much weight to evidence. A challenge to the apportionment of weight or the giving of importance to evidence is one to the exercise of the primary judge’s discretion. It is thus necessary to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong (see CDJ v VAJ (1998) 197 CLR 172 per Kirby J at 230–231).
As with all of the grounds, the challenges depend on acceptance of the father’s evidence, his assertions about the medication and his version of events.
For example, Ground 5 argues that the primary judge placed too much weight on the “false statements” of the mother and her new partner. The ground refers to various paragraphs of her Honour’s reasons where she sets out and accepts the mother’s account of the father’s conduct and its impact as she observed it on the family (at [72] and [77]). Her Honour’s reasons note the husband’s denial of the conduct complained of, but she nevertheless prefers the mother’s evidence.
Equally, Ground 6 challenges the weight given by the primary judge to the opinions of the author of the Family Report. The ground complains that the opinions of the report writer were unsupported by the evidence. The father cites for example [75 d)] of her Honour’s reasons in which she repeats with apparent acceptance the opinion of the report writer about the father’s conduct which she said reflected “his seeming lack of regard for the mother’s views and opinions”. Further the ground cites [177 c)] and [177 d)] of her Honour’s reasons, again where she repeats and clearly accepts the report writer’s opinion that the parties views are “polarised” about the child’s medical care and that the child’s wellbeing “may be compromised by ongoing parental conflict in relation to his allied health and medical treatment”.
Underlying this ground is the father’s contention that since the report writer conceded that she had had no contact with the child’s treating professionals and did not know the detail of the child’s medical history, her opinions were unsupported by the evidence and, as a result, the primary judge’s reliance on them was flawed. The author of the Family Report gave no opinion as to the appropriateness or otherwise of the child’s medical treatment. She reflected on the effect on the child of the parental dispute over his treatment. The complaint is misguided and this ground does not raise any proper challenge to her Honour’s orders.
Ground 7 too alleges that the primary judge failed to give sufficient weight to what the father describes as the mother’s “deceiving” him about the child’s medical treatment from time to time, “obstructing” his time and communication with the children and the mother’s intention to “abuse the process of the Court”.
This ground and the associated particulars, like the other grounds, rest on the father’s assertion of the correctness of his position notwithstanding that the primary judge did not accept his evidence and made findings to that effect. It was not suggested nor in my view could it have been, that there was not an abundance of evidence on which her Honour could rely in rejecting the father’s characterisation of the mother’s conduct.
Thus grounds 4, 5, 6 and 7 should be dismissed.
Ground 8 complains that the primary judge erred in refusing to allow the father to, in effect, mount a collateral attack on the findings of the Magistrate who made the DVO order protecting the mother and the children by reproducing the evidence before the Magistrate and arguing to the primary judge that the decision there was wrong. Her Honour refused to allow that course. She was entirely correct to do so (see Tszyu v Fightvision Pty Ltd (2001) 104 IR 225 and Hunter v Chief Constable of West Midlands Police [1982] AC 529).
This ground raises no proper challenge to her Honour’s orders.
Finally, the father raises a “grab bag” of challenges in Ground 9. He asserts that he did not receive a fair trial because:
·The primary judge did not adequately hear and consider the father’s evidence; and
·The primary judge failed adequately to “sum up” the father’s case.
As to the first two of these complaints, in oral submissions the father said that the primary judge’s reasons did not adequately reflect his contentions about the mother and in particular the mother’s capacity to care for the children and the risk she represented to them.
These challenges to her Honour’s orders must fail. Her Honour went to some lengths to set out the father’s allegations against the mother and her partner in support of his contention that she posed a risk to the children. She did not accept his allegations. Her conclusion was well justified by the evidence. She made no error.
The father further contended that:
·The father was “unable to exercise his right to legal representation”; and
·The father was unable to properly cross examine witnesses as the primary judge “ceased cross examination of the [mother] and the Family Report Writer prematurely”.
Like many litigants in this court and others, the father was not represented. He had no “right” to be represented. He said he had applied for legal aid but this was refused. He did not seek an adjournment to try to obtain legal representation. He was unable to articulate in oral argument how his being unrepresented reflected in an error in her Honour’s orders.
The father, however, is correct, his cross examinations of the mother and the Family Report writer were ended by the primary judge in accordance with what appeared to be a trial plan formulated by the primary judge at the start of the hearing. Although the father was excused from his obligation to provide a transcript for the purposes of the appeal, the primary judge had obtained extracts of the evidence which were made available to the parties for the purposes of the appeal. From those extracts, it is clear that the primary judge set a time limit for the father’s cross examination and gave him warnings from time to time as to how much time was left. Her Honour’s approach was entirely in line with effective case management. When the time for the mother’s cross examination had elapsed, the father did not seek an extension nor did he indicate to the primary judge that there was an important or critical matter which needed to be put.
Thus, none of the grounds reveals a proper appellate challenge and the appeal will fail.

Costs

The mother sought an order for costs against the father in the event that the appeal failed. Although for a time the father was unemployed he is now in employment and I am satisfied that this is an appropriate matter in which to make a costs order, the appeal having been wholly unsuccessful.
Counsel for the mother produced a schedule of the fees charged both by his solicitor and him in relation to the appeal. The total sum is $21,665. I will temper the costs order to be made to reflect that while the father is presently in employment, his income is relatively modest. I will thus make an order that the father pay the mother’s costs of and incidental to the appeal in the sum of $12,000.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

9 August 2019.

Associate:

Date: 9 August 2019