Sandex & Bondir (No 2)
[2017] FamCAFC 130
•14 July 2017
FAMILY COURT OF AUSTRALIA
| SANDEX & BONDIR (NO. 2) | [2017] FamCAFC 130 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Weight afforded to evidence – Error of discretion – Procedural fairness – Findings open on the evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Applications dismissed. |
| Family Law Act 1975 (Cth) s 94AAA(7), 117 Health Records Act 2001 (Vic) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Sandex |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Bondir Victoria Legal Aid |
| FILE NUMBER: | MLC | 1139 | of | 2008 |
| APPEAL NUMBER: | SOA | 9 | of | 2017 |
| DATE DELIVERED: | 14 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Loughnan JJ |
| HEARING DATE: | 5 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 January 2017 |
| LOWER COURT MNC: | [2017] FCCA 79 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Whitchurch |
| SOLICITOR FOR THE RESPONDENT: | Macgregor Barristers and Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr R Smith |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal, such costs to be agreed or assessed in default of agreement and to be paid 28 days after such agreement or assessment.
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 Sandex & Bondir (No. 2) 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 MELBOURNE |
Appeal Number: SOA 9 of 2017
File Number: MLC 1139 of 2008
| Ms Sandex |
Appellant
and
| Mr Bondir |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By her Notice of Appeal filed on 2 February 2017 Ms Sandex (“the mother”) appeals against final parenting orders made by Judge Bender on
24 January 2017.
The orders from which the appeal is brought concern the parties’ two children, X who was born in 2002 and Y who was born in 2004. The parties, having married in August 1999, separated in August 2007, and although they originally entered into consent parenting orders in 2008 it is tolerably clear that they have been in almost constant litigation about the children since 2013. In March 2015 a final hearing of the parenting issues led to orders that the father have sole parental responsibility for the children, that they live with him and spend time with the mother. The mother’s appeal against those orders was dismissed.
Multiple contravention applications were then filed by the mother asserting the father’s breach of the orders providing for the children to spend time with her, and on 19 November 2015 the mother filed an initiating application seeking discharge of the March 2015 orders and, in their place, orders that she have sole parental responsibility for the children and they live with her.
In relation to that initiating application, a family report was ordered by the court, and Ms B conducted interviews with the parties and the children and prepared the report. She recommended that the children live with the father, that he have sole parental responsibility for them and that the children’s time with the mother be suspended until the mother had engaged in therapy regarding her own psychological health. There followed an interim hearing in respect of which the mother swore an affidavit deposing that the children’s statements to the family report writer did not reflect their true feelings. An interim order was made suspending the mother’s time with the children but allowing for telephone calls each Monday for half an hour.
The final hearing before the primary judge occurred on 12, 13 and 14 September 2016, and on 24 January 2017 the primary judge dismissed the mother’s application and, inter alia, ordered that the father have sole parental responsibility for the children, that they live with him and that X spend time with the mother on special occasions and at other times as X chose. In relation to Y the orders provided that he spend time with the mother on one Saturday or Sunday each month and during school holidays.
Her Honour further ordered pursuant to s 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) that the mother be restrained from making any further application in relation to the children without first seeking leave by way of an ex parte application to a judge.
It is against these orders that the mother appeals.
To give a context to the appeal, it is instructive to set out some paragraphs of her Honour’s lengthy and carefully considered reasons:
235.As can be seen from the review of the various experts over many years, there is a constant theme of the Mother not supporting [X and Y’s] relationship with the Father and of her rejecting the children’s views of their positive experience and love of the Father in contrast to her entrenched belief that he is abusive and manipulative and that [X] and [Y] are scared of him.
236.Despite the consistency of [X and Y’s] telling all the report writers of their close and loving relationship with the Father and their wish to have a relationship with him, the Mother cannot and will not accept that this reflect [sic] their genuine wishes.
…
258.The Mother instituted the proceedings that are currently before the Court less than two years after Judge Baker’s decision. The Mother makes multiple complaints of the Father’s inability to support [X and Y’s] schooling, to provide them with even basic care and of a continuation of his long standing intimidation, manipulation and violence that pre-dates the parties’ separation.
259.In relation to the current proceedings, [X], [Y] and the parties were interviewed by [Ms B] for the purposes of a family report.
260.[Ms B] is the fourth report writer to interview [X] and [Y] for the purposes of family law proceedings since the parties’ separation.
261. In her family report and her viva voce evidence, [Ms B] set out the very strong views of the children that their experience of the Father is the antithesis of that which is described by the Mother.
262.[X] describes a loving, caring, supportive relationship with the Father and a very strong wish to continue to live in his care.
263.[X] spoke lovingly about the Father to [Ms B]. She describes him as being a calming influence when she gets angry, in contrast to the Mother who always presumes she is right and who harasses and badgers [X] rather than listening to her views. This causes a great deal of conflict in the mother/daughter relationship.
264.[X] told [Ms B] that she experiences the Mother as domineering, controlling and threatening. [X] told [Ms B] that her mother does not listen to her views or wishes and that “I have tried to say everything to Mum, but she does not listen.”
…
266.It is the evidence of [Ms B] that [X] does not have a nurturing or warm relationship with the Mother.
267.[X] is now expressing very strong wishes to spend minimal time with the Mother and ideally no time at all. In discussion with [Ms B], [X] indicated a willingness to see her mother for special occasions such as birthdays and Christmas but that otherwise she did not want to spend regular time with the Mother and in particular she did not wish to spend any overnight time with her.
268.[Y] has also been impacted by the Mother’s inability to accept that he has a positive and loving relationship with the Father and that he does not experience him as a violent, manipulative, threatening presence but rather as the parent who is supportive, nurturing and understanding of him and his needs.
269.Like [X], [Y] is quite fearful of the Mother. In particular, he is fearful of her reaction to him saying or doing things that she does not agree with. He expresses a very strong wish to continue to live with the Father. Unlike his sister he wishes to spend time with the Mother albeit on a limited basis and not overnight.
270.The Mother rejects outright that the views expressed by [X] and [Y] of how they see their relationship with the Father and with her as being a genuine reflection of how they feel.
271.It is the Mother’s evidence that she believes that [X] and [Y] are not expressing their genuine views to [Ms B], or any previous report writers, because they are so fearful of potential retribution from the Father that they say whatever he instructs them to say and behave however he instructs them to behave.
….
274.It is the evidence of [Ms B] that [X] and [Y] are thriving in their father’s care. She notes that [X] and [Y] make no complaints of the quality of the Father’s care in the context of him not providing adequately to meet their physical day-to-day requirements.
275.Rather than [X] and [Y] expressing any fear of the Father, it is
[Ms B’s] evidence that it is the Mother that [X] and [Y] are more fearful of.…
280.The Mother cross-examined [Ms B] at length in relation to her family report, the observations and assessments made by her of [X and Y], herself and the Father, and her recommendations.
…
283.Despite hearing [Ms B’s] evidence, it is apparent from the Mother’s closing submission that she does not accept any of
[Ms B’s] evidence, just as she has not accepted the evidence of all the experts who have previously given evidence very similar to that of [Ms B].…
286.Whilst the Father is not a perfect parent, I am satisfied that [X] and [Y] are well cared for by him. I am satisfied that the Father, [X], and [Y] have a close and loving relationship and that [X] and [Y] find him to be attuned to their needs and wishes and someone with whom they can communicate and who listens to and takes on board their views and wishes.
287.There is no doubt that the Mother loves [X] and [Y] and wants what is best for them.
288.However, the Mother cannot accept that she is presenting with a truth that is highly distorted. [Ms B] describes the Mother as being absolutely vigilant in believing that her truth is the truth and this distorted truth means that her interpretation of everything [X] and [Y] are saying or doing is highly contaminated by this.
289.It is [Ms B’s] evidence that there is a disconnect between how the Mother is perceiving what [X] and [Y] are saying or doing compared to what [X] and [Y] are actually saying and doing.
290.The Mother’s inability to believe [X] and [Y] and take on board their wishes has resulted in them now needing to limit their interaction with her because of the psychological and emotional impact on them of having to try and accommodate their reality with the Mother’s continued alternate narrative.
291.It is the evidence of [Ms B] that in all these circumstances, limits must be placed on the amount of time that [X] and [Y] spend with the Mother until she engages in therapeutic counselling to strengthen her own psychological health, particularly in relation to her lack of insight and capacity to consider how her behaviour and narrative contributes to [X’s] and [Y’s] current difficulties and the lack of bond in the parent/child relationship.
…
293.The Mother has given very strong evidence that she cannot and will not attend therapeutic counselling because of the significant impact to her mental and physical health such counselling would have as it would require her to revisit what she describes as the extreme domestic violence she suffered at the hands of the Father.
294.In these circumstances, the orders proposed by the Independent Children’s Lawyer and the Father are the only ones that can be seen to be in the best interests of [X] and [Y].
The primary judge found that the mother will not change her view that the children’s relationship with their father is one of fear and that she will continue to reject any contrary views that the children might try to express to her (at [295] and [296]). Her Honour earlier, at [168] rejected the mother’s contention that the children were at risk in the father’s care.
Her Honour concluded:
297. The Mother will not have the relationship with [X] and [Y] that she wishes to have and they desperately deserve and need if she does not engage in therapeutic counselling to assist her to separate her own feelings from those of [Y] and [X] and to develop the requisite insights as to how her behaviour is responsible for the deterioration and fracturing of her relationship with her children and what she needs to do to repair that relationship.
The primary judge further found that the mother would not accept her findings and would continue to pursue parenting proceedings driven by her belief that the children are at risk in the care of the father, and thus an order restraining the mother from filing any further application for parenting orders without leave of the court was in the children’s best interests.
The appeal will be dismissed. It does not raise any question of general principle, and the Court’s reasons in short form (see s 94AAA(7) of the Act) follow.
The Appeal
The mother raises 23 grounds of appeal, which challenge the weight that her Honour gave to the evidence, the exercise of her discretion or the facts her Honour found on the evidence.
In general, the grounds devolve to an argument that the primary judge took a different view of the evidence to that of the mother and made findings different to those for which the mother contended at trial. By way of example, we point to Ground 1 which asserts that the primary judge failed to properly consider the mother’s submissions made to her at the trial. It was not contended that the primary judge ignored those submissions, but, failed, in effect, to accept the mother’s contentions at trial.
Grounds 2, 3, 4, 6, 7, 8, 10, 11, 12, 16, 17, 18 and 21 all challenge the weight which her Honour gave to the evidence before her. Such challenges face a significant hurdle to appellate intervention. The mother must establish that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect her decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong: House v The King (1936) 55 CLR 499.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519 to 520:
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. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
We are not persuaded that her Honour has erred in the weight she attributed to the evidence before her.
Grounds 5, 14, 15 and 23 assert that the primary judge’s findings of fact were erroneous. Again, the establishment of appealable error requires more than an argument, in effect, that another court may have taken a different view of the facts. As Barwick CJ said in Edwards v Noble (1971) 125 CLR 296 at 304:
…The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the findings of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same findings. Merely differing views do not establish that either view is wrong.
It was argued that the primary judge’s finding that the children’s views as expressed to the expert were unfettered by the father’s influence was an erroneous finding. At a number of places in the judgment, the primary judge refers to this assertion by the mother and contrasts it against the expert opinion which was to the effect that the children’s views as expressed to the family report writer were not given as a result of their being afraid of repercussions from the father (see for example [175]).
Ground 23 contends that the primary judge erred in finding that the mother’s “genuinely held belief was not reasonably held”. Her Honour noted the mother’s views at [270] to [273] and concluded as referred to above at [288]:
However, the Mother cannot accept that she is presenting with a truth that is highly distorted. [Ms B] describes the Mother as being absolutely vigilant in believing that her truth is the truth and this distorted truth means that her interpretation of everything [X] and [Y] are saying or doing is highly contaminated by this.
Clearly her Honour accepted the opinion of the expert family report writer over the assertions of the mother, as she was entitled to do, and that finding was entirely open to her. We venture to suggest that on the evidence before her Honour, it was the only finding available on that evidence, and there is no error established here.
It was asserted that the primary judge’s “findings as to credit” in favour of the father and against the mother (Grounds 14 and 15) were against the weight of the evidence. Her Honour made no direct finding as to the credibility of either party although it is clear from her reasons that she did not accept the mother’s contentions that the father posed a risk of harm to the children and that they are fearful of him. In doing so the primary judge relied on the view of the family report writer who had interviewed the children on two occasions. We point out that the fact that the primary judge did not accept the mother’s contentions about these matters does not amount to a finding adverse to her credibility but reflected the primary judge’s assessment of the evidence before her.
None of the matters to which the mother refers establish the necessary threshold.
Grounds 9, 19, 20 and 22 seem to challenge the exercise of her Honour’s discretion. We say “seem to” because the underlying premise of some of the grounds is misconceived and indeed some of them raise no proper challenge to her Honour’s orders. For example, Ground 22 asserts that the primary judge’s discretion miscarried because she failed to consider “the impact her orders would have on the destruction of the relationships between the children and the mother”. Ground 19 contends that the primary judge erred in failing to provide that the orders “be explained honestly to the children by an unbiased party.”
None of the matters necessary to justify appellate intervention in relation to the primary judge’s exercise of her discretion have been established (see House v The King (1936) 55 CLR 499.)
Finally, Ground 13 seems to contend that the primary judge failed to afford the mother procedural fairness because “the orders made were established partially on evidence prior to the children living with the father but the appellant was restricted to evidence since that time.”
As we have already indicated, a final hearing in relation to parenting issues took place in late 2014 and early 2015, and on 5 March 2015 a judge of the Federal Circuit Court made final parenting orders. The mother’s appeal against those orders was unsuccessful. Some eight months later, on 19 November 2015, the mother commenced proceedings to have those orders set aside and for the children to live with her. These are the proceedings concluded by the primary judge’s orders.
Her Honour noted at [89] that in the proceedings before her, the mother sought to rely “on every affidavit filed by her in relation to both these proceedings and the proceedings before Judge Baker” but the mother was only permitted to rely on the affidavits filed specifically for the proceedings then before the primary judge.
There can be no denial of procedural fairness in the course adopted by her Honour; the facts and circumstances underpinning Judge Baker’s orders were undisturbed on appeal and there would be no point in the mother traversing those matters again.
However, as her Honour’s reasons demonstrate, she considered afresh the mother’s assertions as to the father’s effect on the children, his failings as a parent and her contention that the children’s views as expressed to the expert were not their true feelings. In all respects, the primary judge concluded this matter by rejecting the mother’s contentions.
No denial of procedural fairness has been established.
In these circumstances, we are of the view that in none of the challenges raised by the mother to her Honour’s orders has appealable error been established. The mother has not demonstrated that in coming to her decision, the primary judge erred in principle or that she failed to take into account any relevant factor, took into account any irrelevant factor, was mistaken as to the facts or that the result embodied in the orders was clearly wrong or unreasonable or plainly unjust.
Thus, to repeat, the appeal will be dismissed.
Applications in an appeal
The mother sought to rely on three Applications in an Appeal. One, filed on 21 June 2017, concerned the late filing of the summaries of argument by the Independent Children’s Lawyer and the respondent. We heard the submissions of the parties in relation to this application and made an order giving the Independent Children’s Lawyer and the respondent leave to rely on their summaries of argument filed respectively on 22 June 2017 and 27 June 2017.
The other two applications, filed respectively on 3 March 2017 and 16 June 2017 sought leave to adduce further evidence in the appeal. After hearing the submissions of the parties in relation to these applications we dismissed the same and indicated that we would deliver our reasons therefor as part of our reasons in relation to the appeal. These are those reasons.
In broad, the evidence sought to be led fell into two categories; evidence by the mother of circumstances that have occurred since the making of the primary judge’s orders and evidence by way of a critique or review of the expert reports relied on by the primary judge and in which it was asserted that the reports were flawed by reason of errors and by being false, incomplete, inaccurate, and misleading.
The circumstances in which this court can receive evidence on an appeal are constrained. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) McHugh, Gummow and Callinan JJ observed (at [109]) that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous”.
After considering the nature of the jurisdiction of the Full Court to hear appeals, their Honours said:
111. …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.
Further, their Honours said this:
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.
(Our emphasis)
Dealing with the critique or review of the expert reports that was provided by Ms M, who writes for an advocacy service. Ms M contends, based on the mother’s assertions that there are errors in the expert reports that require amendment under the Health Records Act 2001 (Vic) (“the Health Records Act”). As we understand the thrust of Ms M’s reviews, it is that the reports of the consultants engaged in the proceedings must be “corrected” to remove errors and misleading information.
First, the Health Records Act has no application to forensic reports obtained for the purposes of proceedings in the Federal Circuit Court.
Secondly, Ms M’s assertions as to error are based on the mother’s instructions to her that the reports were so flawed. Ms M’s curriculum vitae which was attached to her documents show that she has no apparent qualifications which would allow her to consider and review the expert reports.
Clearly then, this “evidence” could not be admitted by this court, and in any event it does not satisfy the requirements set out in CDJ v VAJ for the receipt of further evidence.
Turning then to the mother’s evidence of matters which occurred after the orders have been made, the mother says that this evidence is necessary to show that the issues and concerns that she raised during the trial have continued since the orders were made.
Again, given the constraints on the reception of further evidence on appeal, that evidence is unable to be accepted.
On these bases we dismissed both applications to adduce further evidence.
costs
According to our usual practice, we sought submissions from the parties on the question of the costs of the appeal to save the time, trouble and expense of returning to the Court to make submissions on costs once the judgment was delivered.
The respondent was in receipt of a grant of Legal Aid and sought an order that the mother pay his costs of the appeal in the event that the appeal was unsuccessful.
The mother opposed the making of the costs order. She argued that the father “chooses” to be unemployed in order to obtain Legal Aid. For her part, the mother said that she is presently working part time but due to start full time work and owns a house encumbered by a mortgage.
The mother declined to indicate her income because she asserted that the father would use that information against her.
The question of the costs of an appeal is governed by s 117 of the Act. We consider the relevant matters in the determination of the issue of costs to be: that the appeal has been wholly unsuccessful; that the mother, although she refused to reveal her income, will shortly be working full time; and the mother owns a house which is encumbered by a mortgage.
There was nothing put to us which would cause us not to make an order for costs in favour of the respondent and, in our view, it is appropriate that such an order be made.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Loughnan JJ) delivered on 14 July 2017.
Associate:
Date: 14 July 2017
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