Sandex and Bondir (No 2) - [2015] FamCAFC 206

FAMILY COURT OF AUSTRALIA

SANDEX & BONDIR (NO. 2)

[2015] FamCAFC 206

FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders – Where the mother submits that the trial judge erred in her approach regarding the credit of the father – Whether the trial judge gave insufficient weight to the fact that the mother had been the primary carer of the children – Where the mother submits that the father’s evidence was not subject to the same scrutiny as the mother’s – Where the trial judge took into the account the children’s views – Where the trial judge identified a risk of the children rejecting the mother if they continued to live with her – Where no error demonstrated – Appeal dismissed.

Family Law Act 1975 (Cth) s 60CC, s 93A(2)

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jurss and Jurss (1976) FLC 90-041

Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Ms Sandex

RESPONDENT:	Mr Bondir
INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid (no appearance)

FILE NUMBER:

MLC

1139

2008

APPEAL NUMBERS:

SOA

2015;

SOA

2015

DATE DELIVERED:

29 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Aldridge & Macmillan JJ

HEARING DATE:

16 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 March 2015; 6 March 2015

LOWER COURT MNC:

[2015] FCCA 396

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Mort

SOLICITOR FOR THE APPELLANT:

Carew Counsel Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr Bondir in person

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid (no appearance)

Orders

Appeal number SOA 15 of 2015 be dismissed.
Appeal number SOA 23 of 2015 be dismissed.
The Application in an Appeal filed on 28 May 2015 and the Application in an Appeal filed on 26 June 2015 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandex & Bondir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers: SOA 15 of 2015; SOA 23 of 2015
File Number: MLC 1139 of 2008

Ms Sandex

Appellant

And

Mr Bondir

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Ms Sandex (“the mother”) appeals against orders made by Judge Baker on 5 March 2015. The trial judge ordered that Mr Bondir (“the father”) have sole parental responsibility for the two children of the marriage, X born in 2002 and Y born in 2004. The children were also to live with the father, and for a period of two months they were to spend time with the mother each Sunday from 10:00 am until 6:00 pm. After that two month period the children were to spend time with their mother from 3:30 pm Friday until 6:00 pm Sunday each alternate weekend. The children were to also spend half of the school holidays with each parent.
The mother’s primary complaint is that as the mother had been the primary carer for the children throughout their lives and as they were thriving children doing well at school, the trial judge could not have found that it was in the best interests of the children for the above orders to be made. The mother also submitted that the trial judge failed properly to give effect to an adverse credit finding made against the father.

The reasons for judgment

As many submissions of the mother on appeal were directed to the manner in which the trial judge approached the evidence and the weighing of the factors to be considered under s 60CC of the Family Law Act 1975 (Cth) (“the Act”), it is necessary to survey the trial judge’s reasons for judgment in some detail.
Her Honour began by noting that the parties commenced cohabitation in 1996, married in 1999 and separated on 31 August 2007.
On 27 June 2008 the parties entered into final parenting and property orders by consent. The parenting orders provided that they have equal shared parental responsibility for the children who were to live with the mother and spend regular time with the father on five nights per fortnight.
On 10 December 2013 the mother filed an Initiating Application seeking to vary those orders. At the hearing she sought sole parental responsibility for the children, that they live with her and spend reduced time with the father. At the conclusion of the hearing the father sought orders that he have sole parental responsibility, that the children live with him, that the mother attend upon a clinical psychologist for therapeutic counselling and that any time the children spend with her be reserved until a favourable report was obtained from the counsellor.
The Independent Children’s Lawyer (“ICL”) ultimately proposed orders that the father have sole parental responsibility, that the children live with him and, subject to the mother attending counselling with an appropriate qualified psychologist or psychiatrist engaged for the purpose of assisting her to support the children’s care arrangements and to support the children’s relationship with the father, that the children spend time with the mother each Saturday or Sunday for six hours.
After noting the proposed orders the trial judge then considered the evidence adduced by the mother, pursuant to leave granted to her after judgment had been reserved, to reopen her case. Her evidence was that the father had failed at the hearing to inform the court that he no longer had full time employment. The trial judge accepted the mother’s evidence and found that the father’s evidence at the hearing as to his employment was “unsatisfactory and misleading”. Notwithstanding, her Honour considered that overall the father’s evidence remained credible.
On the other hand, her Honour found the mother to be an unimpressive witness saying:
27. …In the face of and against all the expert evidence, she continued to assert that the father was a danger to the children, that they were scared of him and that their views were not their own views. I consider that she exaggerated her evidence about family violence and, in particular, the sexual abuse allegation was not credible…
After identifying the relevant principles to be applied, her Honour turned to s 60CC of the Act.
The trial judge found that it would be of benefit to the children to have a meaningful relationship with both parents.
Her Honour then referred to the evidence of the parties on the mother’s allegations of family violence. Her Honour noted the concession of the father that it was possible he threw a dinner plate across a room when the mother and the maternal grandmother were present and that he had made inappropriate statements to the maternal grandmother. The trial judge took into account the evidence of the Family Consultants and Dr E, a psychiatrist, as to what the parties told them about these allegations.
The trial judge reached the following conclusion:
89.I consider that family violence has occurred. I accept the mother’s evidence that around the time of separation, the father made a threat to kill her. He has pushed her. He has been verbally abusive to her and the maternal grandmother and he has on one occasion thrown a plate of food. I do not accept the mother’s evidence that the father has physically harmed her.
90.I reject the mother’s evidence that the father has traumatised and terrified the children. There was no evidence to satisfy me that the children are intimidated by the father or that what they have told the family consultants is as a result of duress, threat or coercion by the father. The family consultants described the children as having a happy, warm and relaxed relationship with their father. They are doing very well at school and with their sport. There was no evidence that [X] is at risk of sexual abuse by the father.
The trial judge extensively considered the evidence as to the children’s views.
Mr G, a Family Consultant, saw the children in June 2014. He said that Y told him that he wanted to spend more time with, and possibly live with his father. He recorded that Y reported that the mother regularly gets angry with him and X when they want to see the father and that she encourages him not to go to his house. Y said that he feels happiest at the father’s house. X, according to Mr G, was very clear that she wished to live with her father if she was able or, at the least, spend more time with him. X said this was because her mother was “over-hard” and “pushes me too much”. Mr G’s opinion was that notwithstanding the children’s age, there was “a maturity and clarity in both children’s views that … need to be given a good deal of consideration and weight by the Court”.
Dr P, a Family Consultant, conducted a Child Inclusive Conference on 19 December 2013. She recorded the children’s views to be similar to those recorded by Mr G. Notwithstanding a dispute between the mother and Dr P as to what occurred at the interviews, the trial judge accepted Dr P’s evidence.
On this aspect the trial judge found:
108.The views of children are important and proper and realistic weight should be attached to any expressed wishes of children. The evidence indicates that I should place weight on the views of [X] and [Y]. I accept the assessments of Dr [P] and Mr [G] about the children’s views. I accept that the children’s views are independent and have not been influenced by the father. On the contrary, I consider that the mother has attempted to influence the children against the father. An example of that was when she took them to the police to make statements about the father.
The trial judge found that the children have a close and loving relationship with their mother, a loving relationship with their maternal grandmother whom they see regularly, and a warm and positive relationship with the father.
As to the likely effect of any changes in the children’s circumstances, the trial judge said:
117.I consider that a change for the children in their living arrangements will be a positive change for them because they want to live primarily with the father. The father accepts the mother’s role in the children’s lives, her love of the children and their love for her. He has the capacity to support their relationship with the mother. Mr [G] highlighted his availability as a primary care-giver, and the minimal impact that a shift to these arrangements would have on the children’s social lives and schooling.
…
122.The adverse effect of the children living with the mother is that her fixed view that they need to be protected from the father creates a difficulty for them in maintaining relationships with both parents.
123.Mr [G] said that, should the Court not change the children’s residence, there would probably be more of the same sort of pressure that they are experiencing, and [X] would vote with her feet at some point.
In considering the capacity of each of the child’s parents to provide for the needs of the child, including their emotional and intellectual needs, the trial judge found that the mother wants the best for the children in respect of their schooling and sport. She was found to have the capacity to provide for their physical and intellectual needs but was incapable of supporting the children’s relationship with the father. In making that finding the trial judge accepted the evidence of Dr E. Dr E had undertaken a psychiatric assessment of the mother. It was his view that the mother “represents as a considerable risk to the children’s welfare in respect to her lack of support of their relationship with their father”.
In July and August 2014 the mother took the children to the police where they provided statements to the police about their fear of the father. She said that she did so because the children were distressed that people were not listening to them and that taking them to the police made them feel more comfortable. Of this visit to the police, Y told Mr G that he was “[not] sure what she wanted me to say… if we told them something she didn’t agree (with) we were in trouble”. X told Mr G that her mother “wanted us to tell them that we are scared of dad but we’re not”.
The trial judge said:
152.The mother’s action of taking the children to the police in July and in August 2014, when they gave statements about their fear of the father, demonstrated a lack of capacity to provide for their emotional needs. The mother said that she took them to the police on these two occasions, at their request.
The trial judge then turned to X’s diary.
In August 2014 the mother forwarded to the police parts of X’s diary. The trial judge recorded:
156.In August 2014, the mother had forwarded to Constable R photocopies of parts of the diary. One page reads as follows:
My life keeps getting worse every day. Nothing ever goes right my life is too complicated to deal with. Sometimes I just feel like giving up. Sometimes I feel like the world doesn’t want me to be able to handle life. I feel as if I’m being punished with all of the shit in my life, for nothing. I feel like there isn’t a reason for me to be living still.
157. Another page reads:
I feel like I don’t deserve to be living, I don’t have a reason to live. I feel as if no one cares about me, how I feel and if I’m hurting. I feel like I’m just another object my parents can control and hurt. I feel like when I get hurt no one cares. Unwanted, Unworthy, Useless, Pathetic, A waste, A Failure.
The mother did not refer to the diary in her submissions or oral evidence. Its existence first emerged in the cross-examination of the police officer to whom the children were taken in August 2014.
The mother’s subsequent evidence was that she had found the diary about six months earlier while cleaning X’s room and that she had given the diary to the police to “show an indication of the fact that maybe [the children] weren’t coping as well as they make out with an outward appearance”. The mother also asserted that she showed the diary to Mr G who denied that the mother had done so. The trial judge preferred Mr G’s evidence.
This led to the trial judge concluding:
162.I consider that the mother’s behaviour in respect of the diary demonstrated her failure to provide for [X]’s emotional needs.
163.In respect of the father, I consider that he is better able to provide for the children’s emotional needs than the mother. He is more attuned to them and supportive of them than her. They are more relaxed in his household. I accept Mr [G’s] opinion that he is better able to provide an environment that is “developmentally helpful and appropriate for growing children”.
Her Honour then found that the father was financially able to support the children. We will return to that finding shortly.
The trial judge moved on to find that the mother had demonstrated an irresponsible attitude to parenting by taking the children to the police and by not seeking help from appropriate professionals. Her failure to accept or even consider what the children told the professionals and the pursuit of her own agenda again demonstrated, according to the trial judge, an irresponsible attitude to parenting.
On the other hand, the father had also been irresponsible towards the children by failing to return the children to the mother in December 2013 and by taking the children with him when he himself visited the police to respond to the statements made by the children.
Her Honour then considered the intervention orders that had been obtained against the father, the circumstances that led to those, and to the outstanding charges in relation to an alleged breach of an intervention order of December 2013.
In making the determination that the father should have sole parental responsibility, the trial judge took into account her finding that the mother had no respect for the father and a negative view of him. Her Honour also found that the relationship between the parties was dysfunctional, acrimonious, that they were incapable of communicating about long term issues, and incapable of making genuine efforts to come to a joint decision about the children.
As to with whom the children should live and spend time, the trial judge said:
205.I consider that both parties are both loving and committed parents. The mother has been the primary carer of the children all their lives. She made good decisions about the children’s schooling and they are doing well at school and sport.
206.However, the father is the person who is more capable of providing for the children’s emotional needs. He has a greater capacity to facilitate the relationship between the children and the mother. I place weight on the children’s views. I place weight on the expert evidence of the risks to the children, in particular to [X], if there is no change of residence. There is a risk that [X] may reject her mother. I am of the view that it is in the best interests of the children that they live with the father.
207.It is not in the best interests for the children to spend equal time with each parent. The children need stability with the father in his household. An equal time arrangement is not reasonably practicable due to the lack of parental alliance and the inability of the parents to implement such an arrangement.
Having made those findings, the trial judge turned to the proposal of the ICL that interim orders should be made conditional upon the mother having treatment or counselling. Her Honour concluded:
215.I am not persuaded that interim orders should be made or that the mother’s time with the children should be conditional upon her having treatment or counselling. I do not agree with Mr [G] that that [sic] there should be a review of the children’s time with the mother on the basis of a change in her attitude to the father. I am not persuaded that the mother has the willingness to commit to intense counselling work, which Mr [G] suggested would be needed. A review will mean further litigation, which I consider is not in the children’s best interests.
216.The evidence of Dr [E] was that the mother does not suffer from a psychiatric condition. I am of the view that the evidence supports his opinion that the prognosis for change of her attitude to the father is poor. I am not persuaded that the mother has the capacity or willingness to change. Her evidence and the way her case was conducted indicated a total unwillingness to soften her opinion about the father or listen to the expert evidence. Her Counsel made submissions in her final address and again on 28 January 2015 that the children are scared of the father and that he has manipulated them to express their views to want to live with him.
217.If I am wrong about the mother’s incapacity to change her attitude, and in the future she takes steps to change and provides expert evidence to demonstrate a change, she should not be prevented from making an application to increase the children’s time with her. If she is able to establish a significant change in circumstances, she may be permitted to bring an application for increased time and to have the application heard on the merits.
218.I consider that substantial and significant time for the children with the mother is not currently in their best interests. I consider the children need some time to settle into the new living arrangement. They should spend time with the mother on a limited basis whilst they settle into the father’s care…

Ground 1

The Amended Notice of Appeal raises four grounds. The first is that the trial judge erred in the exercise of her discretion by failing to place proper weight on the father’s lack of credibility where findings are made in competing issues of fact. As developed in the course of submissions, this ground attacked the trial judge’s finding that the father’s evidence generally was credible notwithstanding that the evidence he gave at the trial as to his employment was found to be “unsatisfactory and misleading”. It was submitted that his evidence on this issue could not be quarantined from the rest of his evidence. This error was compounded, it was submitted, by an adverse credit finding being made against the mother in the face of that finding.

Judgment in the matter was reserved on 5 December 2014.
On 9 January 2015 the mother filed an Application in a Case seeking leave to reopen the proceedings and to adduce further evidence. Leave was granted to the mother to adduce evidence relating to the father’s employment. In dealing with that new evidence the trial judge said:
18.The father was cross-examined. He conceded that it was possible that, when he gave evidence at the hearing in December, he knew that he would no longer be employed on a full-time basis. He said that at the time, he did not know what his working hours would be due to the uncertainty of the litigation. He did not give evidence in December that he had had discussions in October 2014 with his employer that his full-time employment would end on around 1 December 2014, and that he would be employed on a casual basis thereafter.
19.The father said he had believed that he would continue to work similar hours. He conceded that the impression he gave the Court was that he would continue to have full-time employment. He could not explain why he did not give evidence about his discussions with his employer or the possible changes in his work hours. Since the hearing, he has had only a few hours work with [F] Services and has earned $162. He has no ongoing contract for casual employment with this employer.
20.The documents subpoenaed and tendered by the mother indicated that the last payment made to the father for full-time employment was on 27 November 2014. A Termination Pay advice indicated that his termination pay was calculated to 27 November 2014.
21.The father currently has a contract with [B] Pty Ltd, dated 14 January 2015, to work on a basis of four hours per day for a minimum of three days per week. It is a sales and marketing job. He has worked two shifts and earned $500.
22.The father is also in receipt of a Newstart benefit of $601 per fortnight. He is not currently looking for full-time employment. He cannot commit to this until he knows the decision of this Court.
23.The father conceded that there was “some uncertainty” as to how he would provide for the children should the Court order that they live with him. He said that his sister and family are available to help him financially if required.
It was submitted by the mother to this court:
…Her Honour acceded to the application; she ultimately found the Father to be misleading and yet determined the rest of his evidence as credible: without any apparent attempt to discern how that should be measured, if at all, against matters in dispute inter parties; or how that quarantining of evidence sat with the other adverse findings against the Father: when he took the children to see the Police; when he left [Y] at home alone all day; when he left [Y] waiting after school alone due to non payment of after school child care fees; when he irresponsibly over held the children on 4 December 2013; when the father bargained one child against the other; when [Y] missed basketball due to an alleged sore tooth.
(References omitted)
As to the first of these complaints, the trial judge found that the father had irresponsibly taken the children to see the police. As to the second, the trial judge found that Y had been left alone all day by the father when he was too young to be left all day alone. As to the third, the father’s evidence was that Y had to wait at school because after school child care would not be provided due to an outstanding bill. He said that he tried calling the school to pay the bill but had not been able to get through. It was not suggested to the father that that evidence was incorrect. The trial judge found that to be a reasonable explanation. As to the fourth complaint, the trial judge found that the father had irresponsibly held the children over on 4 December 2013. The fifth matter was not the subject of a finding by the trial judge. The father had sent text messages to the effect of “if I don’t get [X] tonight [Y] will not go to basketball” and “[i]f I do not get [X] today then [Y] will be going nowhere. [X] wants to be with me”. He agreed that the first of those messages could be perceived as a threat.
The last complaint is of an occasion when the father did not take Y to a basketball game but took him to a dentist instead. It was put to the father:
…[Y] told the nurse at the dentist that he didn’t have a sore tooth and that you stood there and said, “Yes. You do.” What do you say about that --- I say that is incorrect and my daughter was actually with us at – the time, so – and so was – so was a dental nurse.
The father’s evidence continued that Y had some treatment at the dentist for gum disease and the father agreed that he did not tell the mother of the assessment, the treatment or the outcome.
As all but one of these issues were resolved in the mother’s favour, it is impossible to see how the trial judge quarantined the father’s misleading evidence as to his employment. The findings as to the father’s credit were made on a consideration of all of the evidence. Importantly, the submissions of the mother did not identify what was said to be the other matters in dispute that would have been resolved in the mother’s favour by extending the credit finding in relation to the father’s evidence about his employment to those matters. It is to be recalled that the issues of family violence, to a significant degree, were resolved in the mother’s favour.
Finally, it is clear that a trial judge is entitled to reject some parts of a witness’ evidence and accept others. An adverse credit finding as to part of a witness’ evidence does not necessarily taint the whole of the witness’ evidence.
It was then submitted by the mother that the adverse credit finding made by the trial judge in relation to the father’s evidence as to his employment required the trial judge not to accept his evidence that his sister and family were available to help him financially, if required. There was, it was submitted, no corroboration of that evidence by his sister or members of his family. A fundamental difficulty with this submission is that, although the father was cross-examined on this issue, it was not suggested to him, in any way, that his family would not, or could not, provide that assistance. The ability of the father’s sister and family to provide financial support was never explored. In those circumstances it is not surprising that the trial judge accepted the father’s evidence.
It follows that the finding of the trial judge that the father was financially able to support the children, to which we referred earlier, was open on the evidence, and that is all that is required.
The mother has not shown that the trial judge erred in her approach to the credit of the father and this ground of appeal is not established.

Grounds 2 – 4

It is convenient to follow the course of counsel for the mother and deal with these three grounds together. Essentially, each is a different iteration of the same proposition, namely, that the trial judge gave insufficient weight to the long standing care of the children by the mother who were, it was said, doing very well as a result, and thereby made orders that were not in the best interests of the children.
Appellants who seek to challenge a discretionary judgment based upon the weight given by the trial judge to various factors face a difficult task. This is made perfectly clear by the following cases.
In House v The King (1936) 55 CLR 499, Dixon Evatt and McTiernan JJ said, at 504 – 505:
…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…
In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge…
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 - 540:
… Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(References omitted)
Finally in CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ said at [151] and [152]:
151.…absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge...
…
152.…It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require...
In short, there can be more than one right answer in a parenting case and judges may reasonably differ about the result. Merely identifying a different, but also reasonable result does not identify error.
There were two consistent themes to the mother’s submissions, one of which has already been noted, and which was the change in the residence of the children from the mother who had been their primary carer since they were born. The second was that the close scrutiny the mother faced in the trial judge’s reasons was not matched by the scrutiny placed upon the father.
A particular example of this was said by the mother to be the court ordering and relying upon a psychiatric assessment of the mother when there was no such assessment of the father. We pause merely to note that this is an untenable example because there was never any application by the mother or the ICL for such an assessment of the father.
Nonetheless in support of that theme the mother relied upon the following passage of Demack J from Jurss and Jurss (1976) FLC 90-041 at 75,184:
The welfare of a child in any particular case must be determined on the facts of the particular case. Certainly rules of experience and prudence may indicate the limits of the inquiry in any particular case, and certainly experience may indicate certain factors which are more significant than other factors. But to look for disqualifying factors against the mother is to put the cart before the horse. The inquiry is essentially a positive one designed to promote the interests of the child, not to demote the claims of either parent.
Whilst the accuracy of the first sentence of that passage is beyond doubt, the balance is covered by the amendments to the Act made in 2006. In particular, s 60CC sets out the considerations to which regard must be had in determining the best interests of the child. It is those to which attention must be drawn rather than such vague and general notions of placing a greater scrutiny on one party, demoting the interests of the mother or undertaking a positive inquiry. It is also the case that there is no legislative requirement, save and except as is provided in s 60CC(2A) of the Act, that the considerations in s 60CC must be considered in a particular order. The weight to be given to each of these considerations will inevitably depend on the circumstances of the particular case.
The various specific complaints of the mother that arise in these grounds of appeal can conveniently be placed in five groups.
The first is the complaint that the father’s acts of family violence were not given sufficient weight. The mother’s submissions acknowledged that, for the most part, the mother’s evidence as to family violence lacked particularity. The only event of physical violence specifically alleged by the mother was an incident at the local swimming pool where the mother asserted and the father denied that he violently pushed the mother away from the door of the car and hit her. The father accepted that he had pushed the mother out of the way so that he could close the car door. This was, it was submitted, a particularly significant incident because, on either version, it occurred in front of the children.
The trial judge clearly identified a number of nasty and threatening comments made by the father to the mother and the maternal grandmother. Of this finding however, it was submitted that the abusive attitude of the father, his threats and name calling was not given the moment it should have been.
The trial judge’s finding, which we repeat, was:
89.I consider that family violence has occurred. I accept the mother’s evidence that around the time of separation, the father made a threat to kill her. He has pushed her. He has been verbally abusive to her and the maternal grandmother and he has on one occasion thrown a plate of food. I do not accept the mother’s evidence that the father has physically harmed her.
Thus the father did not escape scrutiny. On the contrary, a significant and adverse finding was made against him and taken into account by the trial judge. Importantly, however, as to the weight to be given to that finding, the trial judge explained that there was no evidence that satisfied her that the children were intimidated by the father and that they had a happy and warm and relaxed relationship with him.
That finding was not challenged on appeal and is clearly a relevant matter to take into account in weighing the impact of the family violence that was found to have occurred.
The second complaint is that the views of the children were incorrectly taken into account.
The mother’s firm evidence was that the children told her that they did not wish to live with their father. She maintained that evidence and that belief in the face of some criticism from the Family Consultants and independent experts for not understanding and accepting the views of the children.
On the other hand, the trial judge, relying on the evidence of Mr G and Dr P, found that X, in particular, clearly expressed a wish to live with the father and to spend more time with him. Y at times said he wished to live with his father, and at times he said he wanted to spend more time with him.
There was ample evidence before her Honour that the children’s views supported the orders that were made.
Mr G, the Family Consultant, agreed that it is possible that children may well say different things to each parent. Accepting for a moment that the children did say to their mother that they did not wish to live with their father, that does not explain why they said something quite different to the Family Consultant and the independent expert. The mother’s evidence, even if accepted, does not establish that what the children told independent witnesses was, in fact, not their view or had been influenced by the father.
The trial judge was quite entitled to accept the evidence of Mr G and Dr P on this issue and then to place the weight on the children’s views that she did.
The third complaint is that the father’s poor attitude to parenting was not subject to the same scrutiny of the mother’s and was given inadequate weight. For example, it was submitted that the mother taking the children to the police was given significant weight but the father doing the same thing was not. In other words, it was submitted that the father’s lack of insight into the emotional needs of the children was too readily dismissed by the trial judge. Of this the trial judge said:
176.The father was irresponsible by taking the children with him when he visited the police to respond to the statements made by the children…
This coupled with the discussion of the incidents referred to earlier in this judgment led to the finding that the father “has at times demonstrated an irresponsible attitude to parenting”. Thus, the precise finding contended for by the mother was made. That finding was weighed against the specific and unchallenged finding made about the mother that:
170.The mother has not demonstrated a responsible attitude to parenting by pursuing her own agenda and adamantly denying all of the children’s reality…
The trial judge was then required to take each of the findings into account, which her Honour did.
The fourth complaint is the financial ability of the father to care for the children. It was submitted that the finding made by the trial judge that he had the capacity to provide for the children’s physical needs was not open on the evidence. Given the trial judge’s acceptance of the unchallenged evidence of the father that his family would support him, as discussed earlier, that is an untenable submission.
The trial judge was well aware that, on the state of the evidence, the father’s financial position was uncertain and inferior to the mother’s. That was, however, weighed against the finding that the father was better able to provide for the children’s emotional needs than the mother.
Finally and fifthly, it was said that the trial judge erred in not providing for the children to continue to live with the mother on the basis that the mother receive counselling or psychological assistance. The submission was:
The option for Her Honour was to allow this counselling to take place for a limited time and review the situation – rather than making drastic changes to a longstanding status quo and altering the residence arrangements. Her Honour did not agree with Mr [G], not being persuaded as to the Mother’s willingness to commit to intense counselling work. Further, she determined the mother showed a total aversion to soften her opinion about the Father or to listen to the expert evidence.
…
…Either way she decided against the recommendations of the Family Consultant and altered residence first, without having the Mother seek counselling…
(Footnotes omitted)

This was not a proposal that was put by either party or, initially, the ICL.
In the course of submissions before the trial judge the ICL proposed that, on an interim basis, the children should live with the father and spend significant time with the mother provided that she undergo counselling. It was proposed that, although the children spending time with the mother would be conditional upon the mother receiving counselling, that time should start immediately and not wait until counselling could be arranged. Such an approach had been explored by the Family Consultant in his report.
This was raised by the trial judge with the mother’s counsel during final submissions. Counsel informed the trial judge that it was the mother’s position that, in the event the court made orders as suggested by the ICL in final submissions, then she would attend such counselling provided that the name of the counsellor and any information that the mother provided to the counsellor, be withheld from the father.
The trial judge found that the mother would not attend counselling voluntarily and her Honour was not persuaded that the mother had the willingness to commit to intense counselling work which the expert evidence said would be required. Her Honour further found that the mother had neither the capacity nor the willingness to change to soften her opinion about the father or listen to expert evidence. None of those findings of fact was challenged on the appeal.
The evidence of Mr G was relied upon by the mother in support of this complaint. When asked about counselling he said:
So what’s sometimes done in cases like this is that there is a, you know, there’s a hiatus period where once the residence is moved that there’s a period of no time between children and the former residential parent. Is that – and then allowing that parent also to have some counselling and some time to deal with some of the issues. Is that something that might be appropriate in this case?---It – it may be a possibility to allow things to settle. I – I suspect the children would be – if – if the court were to make that – - those orders that the children would be very concerned about their mother’s reaction.
Because that’s one of the – the children do say they want to live with dad - - -?---Yes.
- - - but they’re going to be burdened, aren’t they - - -?---Yes.
- - - by that decision being made?---Yes, yes, yes. They’re – they’re still caught, as – as all children are, and – and they – they – they love their mother. They have an attachment with their mother, love their father. It’s – it’s just that they’re not able at the moment to freely express that so, yes.
Okay. And you formed the opinion in your report that the father was better placed as a parent to foster that relationship with their mother than she was - - -?---Absolutely.
This evidence is clearly no endorsement of the proposal put by the ICL.
The findings made by the trial judge as to the mother’s attitude to counselling, referred to earlier, were well open to her Honour on the evidence and weighed against the ICL’s proposed orders.
In short, by a variety of means the mother sought to put the proposition that moving the children to live with the father was unreasonable because she had been their primary carer for all of their lives, they were doing well, had a good relationship with both parents and it was simply too great a leap of faith to place them with their father.
As to this, the findings outlined above identify a real risk of the children rejecting their mother if they were to stay with her. The best chance of the children maintaining a relationship with both parents was for them to live with the father. Secondly, we are firmly of the view that the findings made by the trial judge were open to her on the evidence. As the authorities make abundantly clear, the fact that another judge may have weighed these considerations somewhat differently and arrived at a different order does not establish error.
Thus, no case for appellate intervention has been established.

Stay Appeal

On 6 March 2015 Judge Baker dismissed an Application in a Case filed by the mother seeking a stay of the orders of 4 March 2015. A Notice of Appeal against that decision was filed by the mother on 1 April 2015. Counsel for the mother properly conceded that the stay application had been mitigated by the primary appeal being expedited. The upshot was that the appeal was withdrawn and we indicated that we would formally dismiss it.

Application in an Appeal filed on 26 June 2015 to adduce further evidence

The mother sought to rely upon two extensive affidavits on the appeal filed respectively on 26 June 2015 and 1 July 2015. Therein she deposed to many events that had occurred after the judgment had been delivered. These included allegations that the father was blocking the contact between the mother and the children, taking their mobile phones, listening in when they talked to their mother on the telephone, failing to take the children to the doctor as required, failing financially to support the children by paying for school and extra-curricular activities, that the children were in a poor emotional state and that the children wished to return to the mother.
Section 93A(2) of the Act provides:
(2) Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b) by oral examination before the Family Court or a Judge; or
(c) as provided for in Division 2 of Part XI.
Of this, the High Court said in CDJ:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that “[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below”. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
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.
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
(References omitted)
The evidence the mother seeks to adduce does not point to or identify an error by the trial judge. Rather, if accepted, the proposed evidence might point to a change in circumstances. That is not sufficient to justify the evidence being received on the appeal. The father also indicated that the evidence was controversial and this was accepted by counsel for the mother. Therefore, if the evidence were to be admitted, the father would need to have the opportunity to reply and there would likely be a requirement for cross-examination. An appeal is not an appropriate vehicle for considering whether or not the evidence establishes there has been a change of circumstances which would justify a reconsideration of the parenting orders.
The mother submitted that the evidence should be admitted because the court must act in the best interests of the child. Whilst the best interests of the children are the paramount consideration in determining the appropriate parenting order, it does not apply so as to override the operation of s 93A(2). The Application in an Appeal filed on 26 June 2015 will be dismissed.
An Application in an Appeal filed on 28 May 2015 seeking to issue subpoenas was not pressed and will also be dismissed.

Costs

The father appeared for himself and indicated to the court that he had no basis for seeking a costs order if the appeal was to be dismissed. Accordingly, there will be no order for costs.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge and Macmillan JJ) delivered on 29 October 2015.

Associate:

Date: 29 October 2015