SANDS & GARD
[2016] FamCAFC 137
•28 July 2016
FAMILY COURT OF AUSTRALIA
| SANDS & GARD | [2016] FamCAFC 137 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made an order excluding the father from filing an initiating application for parenting orders for two years – Where this order was made notwithstanding the principles in Rice and Asplund (1979) FLC 90-725 – Where the respondent conceded that this order was made without power – Appeal against this order allowed. FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made orders that the mother have sole parental responsibility and made no orders for the children to spend time with the father – Where the trial judge made no findings in regards to assertions of family violence – Where the trial judge found that the parties had no working relationship – Appeal dismissed. FAMILY LAW – COSTS – Where the appeal was successful in relation to only one ground and the remaining grounds dismissed – Where it is not appropriate to order a costs certificate – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC, 117 |
| Browne & Keith [2015] FamCAFC 143 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 Metwally v University of Wollongong (1985) 60 ALR 68 |
| APPELLANT: | Mr Sands |
| RESPONDENT: | Ms Gard |
| FILE NUMBER: | ADC | 3122 | of | 2011 |
| APPEAL NUMBER: | SOA | 50 | of | 2015 |
| DATE DELIVERED: | 28 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 5 July 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 2719 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Horvat |
| SOLICITOR FOR THE APPELLANT: | CG Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
The appeal against paragraph 7 of the orders made by Judge Mead on 9 June 2015 is allowed and paragraph 7 is set aside.
The appeal against the orders of Judge Mead made on 9 June 2015 is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sands & Gard 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 ADELAIDE |
Appeal Number: SOA 50 of 2015
File Number: ADC 3122 of 2011
| Mr Sands |
Appellant
and
| Ms Gard |
Respondent
REASONS FOR JUDGMENT
Mr Sands (“the father”) by Notice of Appeal filed 17 November 2015 appeals against final parenting orders made on 9 June 2015 by Judge Mead in the Federal Circuit Court. The orders concern the parties’ three children, A and B born in 2005 and C born in 2007 (“the children”). Ms Gard (“the mother”) resists the appeal and seeks to maintain her Honour’s orders.
Her Honour ordered that the mother have sole parental responsibility for the children, that the children live with the mother, and that there be no order for the children to spend time with the father. Her Honour also ordered that the mother provide the father with the children’s school reports and photographs of the children, and in the event of serious illness or accident, that the mother inform the father and provide him with copies of specialist medical and dental reports. In the event that the children wished to speak to the father or spend time with him, her Honour ordered the mother to facilitate that contact.
Her Honour further ordered:
(7) That notwithstanding the “Rice & Asplund principles”, the father be at liberty to file an initiating application for parenting orders, provided same is not filed prior to 31 May 2017;
Although this order was not directly challenged in the father’s Notice of Appeal, during the appeal hearing leave was sought and granted to the father’s counsel to amend the Notice of Appeal to include an order seeking that paragraph 7 of the orders made by her Honour be set aside. During argument on the appeal counsel for the mother conceded the appeal in relation to that order on the basis that it was made without power.
Thus, the appeal will be allowed in part and this order will be set aside.
Background
We set out some background taken from her Honour’s reasons to provide context to the grounds argued on the appeal.
Her Honour outlined the parenting orders sought by the parties and said:
9. The reason that these parties both sought such extreme orders was the high level of antagonism, disrespect and utter contempt that each of them have for the other. It is rare that parties are so openly contemptuous of the other, and to that end it is to the credit of the parties that in the witness box they were so frank as to their views about the other of them.
10. As far as the mother is concerned, the father is nothing more than a violent, overbearing thug who managed to get away with charges of rape and assault and who is an ongoing threat to her and the children’s safety. She said she is concerned that he might kill the children, and that she has been subjected to his violence, his control and his overbearing nature at least from the time they were in Australia.
11. Her case was that during the time that the parties lived [overseas], things were a little better, but that he is prone to outbursts of anger and accordingly she had no option but to seek orders that the children live with her and spend no time with their father. She said it is her duty as a mother to do everything to protect the children, and, from her perspective, they are at genuine risk of ill harm towards them by the father.
12. The father, for his part, says that the mother is a criminal and that her entire family are criminals. He said that she cannot be trusted in any way whatsoever, and that her evidence in respect of the rape and the assault charges was completely made up. It was his case that that was shown by the Criminal Court saying that they could not rely on the evidence. He said that the children are at significant risk if they remain in her household, where they will not only be subject to influence and control by her as to any positive views or feelings they may have towards him but further that her vicious attitude towards him will simply be aided and abetted by her extended family and the children’s lives will be ruined.
13. I am summing the evidence up, but that is not putting too highly the view of each of the parties. As I say, such expressed utter contempt is rare. As far as the father was concerned, the mother is just one member of an extensively criminalised family who will stop at nothing to get what they want. It was his evidence that the children have no chance at all of growing up to be respectable, law-abiding citizens if they remain in the mother’s care.
Her Honour further said:
14. I am going in this particular matter to make an order that the children not spend time with their father, because of my great concern as to the ability of either of the parties, regardless of who is telling the truth, to have any ability to recognise their own contribution to the dilemma in which these children inevitably find themselves. Accordingly I find neither have any capacity to contribute towards an improvement of the children’s situation such that they have the ability, as they are entitled to do under the laws of this country, to have a close and meaningful relationship with each of their parents, subject to their best interests.
In evidence before her Honour were two reports from an expert, Dr D, who also gave evidence in the hearing. The trial judge noted that Dr D’s evidence was that if the children did not enjoy a relationship with their father it would have long term adverse implications for them. Her Honour concluded that:
21. …There is no doubt that having a parent cut out of your life can have very serious consequences indeed.
Her Honour continued though:
23. What I do find however is that these children at the present time have no ability to have a meaningful relationship with both of their parents because of the appalling contribution that both of their parents have made to the toxicity of the relationship that now exists between them. What this has meant is that these children have inevitably had to side with one parent or another, whether that parent has covertly or overtly influenced them.
24. Neither of these parents have any ability to put their children’s rights and wellbeing ahead of their own petty ongoing squabbles. They are rude to each other. They are critical to and of each other. They are, as I have said, contemptuous of each other. This has been clearly apparent throughout their evidence both in chief and in cross examination.
25. To expect these three children who are all significantly resistant, at this stage, for whatever reason, to have a relationship with their father, by way of embarking upon some long term therapeutic undertaking in an attempt to resolve the problems they are facing because of their parents’ behaviour is, to my mind, quite frankly a step too far.
Her Honour referred to attempts at therapeutic counselling conducted in 2014 and 2015 which had been undertaken by the parents following a recommendation of Dr D and orders being made to that effect. The recommendation further provided that after the parents had had three counselling sessions, if the counsellor considered it appropriate, the children would be involved. After the parties concluded their counselling sessions, no further appointments were made and the children were not seen. It is uncontentious that the counselling was unsuccessful in bringing about amelioration in the parties’ attitudes towards each other (at [32]).
Her Honour also referred to attempts to have the children’s time with the father supervised and conducted at a contact service. It too was unsuccessful, her Honour noting that the children behaved in a way which led to them spending less and less time with the father. Ultimately the contact service withdrew its support for the children spending time with the father (at [32]).
Her Honour then turned to the views of the children and observed at [29] that they each made it clear when speaking to the expert that they wanted nothing to do with the father. She noted however, the evidence of the expert that the children did not appear frightened of the father. She concluded at [36] that the children were not so young that their views should be ignored but neither should their views determine the issue.
The trial judge rejected the suggestion that the children should undergo protracted therapy to facilitate them seeing the father and concluded that to do so would amount to subjecting them to abuse (at [38]).
As to parental responsibility, her Honour said:
55.The mother also seeks an order for sole parental responsibility. I am going to make that order because there is no working relationship between these parties at all. I am concerned about something like a serious medical issue arising and the parties not being in any communication or the like. But having said that, I will be making orders about provision of information by the mother to the father about school and medical issues. Two, that the mother have the sole parental responsibility for the said children.
The appeal
The Notice of Appeal raises 17 grounds of challenge to her Honour’s orders. During argument on the appeal, counsel for the father argued those grounds in groups and we propose to consider them similarly.
It must be understood at the outset that there was no challenge to her Honour’s findings about the parties and their relationship with each other.
Grounds 1 and 2
These challenges concern her Honour’s order that the mother have sole parental responsibility for the children.
It was first contended that in coming to her conclusion that the mother should have sole parental responsibility for the children, her Honour erred in that she did not set out in her reasons the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), and in particular s 61DA. We understand this submission to be that her Honour was obliged to refer in terms to s 61DA, the presumption of equal shared parental responsibility, and then indicate the basis on which that presumption was rebutted in this case. To fail to do so, it was argued, was an error. We reject the foundational premise that a judge is required to incant, in some ritualistic way, the relevant sections of the Act for fear of error. In Browne & Keith [2015] FamCAFC 143 the Full Court said at [22]:
To the extent that the challenge asserts that a judge is required to resort to a form of incantation, identifying the power being used to make the order, we reject it. In our view, if the content of the judge’s reasons are adequate to indicate the matters to which the judge has had regard in making orders, it is both unnecessary and unhelpful to impose a requirement that calls for such an incantation…
It was not suggested, nor in our view, could it have been, that her Honour’s reasons do not make it entirely clear why the application of the presumption of equal shared parental responsibility was not in these children’s best interests.
It was submitted that although her Honour found that the parties had “no working relationship”, she could nonetheless have ordered the parties to consult about matters concerning the children.
No submission was made to her Honour in this regard, nor was it suggested to the expert during her evidence as being a viable course to adopt. In that case we doubt the ability of the father to mount this argument on appeal (see Metwally v University of Wollongong (1985) 60 ALR 68). However, the decision to order sole parental responsibility to the mother was an exercise of her Honour’s discretion and thus for there to be appellate intervention, it must be shown that her Honour’s decision was “plainly wrong” (Gronow v Gronow (1979) 144 CLR 513 at 519). That has not been demonstrated.
These grounds do not succeed.
Grounds 3, 4, 14 and 15
Ground 15
Ground 15 challenges her Honour’s power to make the order in relation to future applications brought by the father. As we have already indicated, this part of the appeal has been conceded and we will set aside that order as made by her Honour.
Ground 14
In relation to Ground 14 it was asserted that her Honour erred in failing to make findings as to the credibility of the parties in that she failed to make findings in relation to the mother’s allegations against the father of violence and abuse and her allegations that the father was a risk to the children, and further failed to make findings in relation to the father’s denials of these allegations.
In the same vein, it was contended that her Honour failed to make a finding in relation to the father’s allegation that the mother was turning the children against him.
The mother made serious allegations of criminal conduct against the father in relation to which he was charged. He ultimately stood trial and was acquitted of the charges.
Her Honour referred to all these allegations and, in the context of the evidence before her said:
15. We heard evidence from Dr [D] as to what, she conceded ultimately in response to questions from me, was an idealised position that she felt duty and honour bound to put to the Court as to how things might be managed for these children. Her views depend on whether the Court found that there was nothing to the mother’s case of violence and abuse as regards the father and that he was at no risk to the children, or alternatively if the Court found that he was a risk to the children. Dr [D] came up with various scenarios about how each of those different findings could be managed.
16. In fact however I do not consider in this case that those findings are necessary. The court would have to trawl over the parties evidence where in reality there is little chance of being able to make specific findings other than that there is great enmity between these parties contributed to by each of them. I find it was not possible for the children to have stayed out of that toxic arena both during the time of the parties’ relationship and subsequently and any attempt by the Court to facilitate the children having a relationship with their father at this point in time, no matter what findings the Court makes, will, in my view, result in trauma to the children.
It must first be noted that in submissions to her Honour, counsel for the father submitted:
The second part of that consideration is that your Honour needs to take into account the need to protect the children from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence…
Your Honour, in relation to the primary considerations we submit that your Honour cannot make positive findings based upon the evidence of the mother against the father in relation to family violence. …
(Transcript 5 June 2015, page 167 lines 19-21, 28-30)
Clearly, then, this ground cannot be maintained when her Honour took the very course urged on her by counsel for the father and this challenge cannot succeed.
Grounds 3 and 4
These grounds challenge her Honour’s findings that the children should spend no time with the father. The thrust of these grounds being that her Honour failed to make findings of fact about matters seminal to her determination of the children’s best interests and thus her order that the children spend no time with the father was in error.
Specifically it was argued that her Honour failed to make findings in relation to the father’s assertions that the mother had influenced the children against the father; that the children had adopted the mother’s views about the father; that there had been a relationship in the past between the father and the children such that the children ought to spend time with the father and that the father had not seen the children for four years because of the mother’s actions in preventing him.
As to the mother influencing the children and them adopting her views, we first do not accept that her Honour did not make such a finding. A reading of [23], albeit by implication, seems to be a finding that the children have “sided” with the mother.
However, her Honour’s reasons make it plain that her determination of the issue as to parental responsibility and as to the time the children spend with the father rested on the parents’ inability to manage their relationship in furtherance of the children’s best interests. Her Honour said:
37. The reality is these parents are just incapable of understanding that they need to rise above their own fight to protect their children. I am not satisfied on the evidence that they are at a stage where either of them have that capacity.
By whatever means the children’s views about the father were formed, her Honour’s unchallenged findings at [14] are that neither parent had the ability to improve the situation in which the children found themselves. In those circumstances, whose version of events was to be preferred was of little moment.
Under the rubric of these grounds it was argued that her Honour should have ordered that the children have unsupervised time with the father. The decision to make no order for the children to spend time with the father was a matter of discretion for her Honour which we do not accept was “plainly wrong”. We further reject the assertion that her Honour gave insufficient reasons in making this finding. Her Honour gave clear reasons that her decision was based on the parties’ hostility towards each other and the trauma the children would face if ordered to spend time with the father.
Thus these grounds must fail.
Grounds 5 and 6
Grounds 5 and 6 refer to the evidence of witnesses called by the father to rebut the mother’s allegations that he drank to excess and was abusive to her and the children.
The submissions in relation to the father’s witnesses are beset by a foundational error. It was submitted that her Honour failed to take into account the uncontested evidence of these witnesses and thus failed to “make any assessment of the [father’s] level of alcohol use and whether he had engaged in family violence towards the mother and/or the children” (Father’s Summary of Argument filed 2 May 2016, page 5 at [30]).
Acceptance or otherwise of the evidence of the father’s friends and family does not provide proof, or in this case, disprove the mother’s allegations. The evidence of these witnesses merely speaks to the times in which they observed the father in their presence.
In any event, given her Honour’s findings about the parties, the level of hostility in their relationship and her Honour’s conclusions about the best interests of the children we are unable to see how complete acceptance of the evidence of these witnesses was material to her Honour’s ultimate conclusion.
Grounds 7, 8, 9 and 13
Grounds 7, 8 and 9
Ground 8 asserts that her Honour erred in not ordering immediate unsupervised time between the children and the father in accordance with Dr D’s recommendation in her report. Grounds 7 and 9 contend that her Honour erred in the weight she gave to the expert’s opinion, asserting that her Honour did not place enough weight on the recommendations in addition to placing too much weight on the children’s views as expressed in the report.
It is necessary to consider these grounds against the evidence before her Honour.
Dr D prepared two reports in this matter. The first was dated 28 July 2014 and the second, 1 May 2015.
In her first report, Dr D, after reporting on the degree of hostility and distrust between the parents said:
65. At this time, given the seemingly unrelenting discord and conflict of opinion between these parties, and the counter allegations of abuse and distrust between them, it did not appear that it would be in these children’s best interests for their parents to hold equal shared parental responsibility for them unless they could agree to do so with civility, respect and child focus. At this time those goals appeared likely to be unachievable.
(Family Report 28 July 2014, page 19 at [65])
As to contact between the children and the father, Dr D noted that the parents agreed that the children should spend time with the father at a contact centre (Family Report 28 July 2015, page 19-20 at [66]).
Dr D recommended that the parties attend separately for counselling with a view to the children being involved at the discretion of the therapist (Family Report 28 July 2014, page 21 at [74]-[75]).
After reporting on the results of her interviews with the parents and children, in her second report Dr D said:
80. It appeared difficult to perceive how at this time, without significant perhaps long term and possibly expensive therapeutic intervention for father, mother and the children, and without the children having opportunity to experience their father as a warmly loving and responsible child focussed father, the children might benefit from contact with their father … It appeared the likelihood of successful and willing engagement of each member and the practicality of such long term engagements might not be easily achieved through Court Orders and without the firm commitment of all concerned.
(Family Report 1 May 2015, page 19 at [80])
She recommended:
·If the court found that the father did not pose a risk of harm to the children, the children live with the mother and for the following twelve weeks the children spend time with the father each Saturday or Sunday from 9.00 am to 6.00 pm. The point at which the children went to the father was to be a contact centre. Dr D proposed that after twelve weeks the handovers could take place after school.
·If the court found that the mother had aligned the children to her views of the father for the purposes of encouraging them to resist spending time with him, then the parents and the children attend a therapist for assessment and counselling to rebuild and strengthen the relationships between the children and the father. Dr D recommended that the children do not spend time with the father during this process.
·If the court found that the father presented an unacceptable risk to the children, there should be no time spent by the children with the father.
During her evidence in the hearing, Dr D spoke about these recommendations, and in particular her suggestion there be immediate unsupervised time between the children and the father in the event that the court concluded that the father posed no unacceptable risk of harm to the children. The exchange with her Honour is as follows:
[HER HONOUR]: How? How are they going to do that? If mum doesn’t want them to go – we can’t even ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ get them to go at the children’s contact service?‑‑‑True. Yes, your Honour. It was simply ‑ ‑ ‑
I mean, I’ve got to deal with the real world, Dr [D]?‑‑‑Yes, indeed.
I mean, on the one hand – I’m confused about this, too – on the one hand you’re saying the only way this will work is with long-term expensive family therapy that nobody is likely to engage in, and on the other hand you say, “Well, just send them off to spend time with dad”?‑‑‑Yes, your Honour. I did, and I said it because to absolutely remove [the father] from the children’s lives didn’t seem to be an appropriate ‑ ‑ ‑
I understand that?‑‑‑ ‑ ‑ ‑ option either.
I understand that, but how do you think it’s going to happen? This mother take the children down to the children’s contact service. We couldn’t even get the supervised times to occur?‑‑‑No.
I mean, this is the problem, you see, with abstract ideas and – no criticism, Dr [D]. I absolutely understand where you’re coming from, but I have to deal with realities of people’s lives. I’ve got two people who can’t stand the sight of each other, both of whom think the other is a completely incompetent parent?‑‑‑Yes.
And two children who have been almost solely in the care of the mother for the last couple of years, either for good or wrong reasons – I don’t know, but certainly the criminal courts said that they thought it was dodgy to say the least – but two children who won’t even try and interact properly with dad, or a little bit, at the children’s contact service, and now you’re saying, “Well, if dad isn’t a risk send them off anyway.” Who’s going to send them off? How’s it going to happen?‑‑‑I think my view was that if there was a court order the mother might encourage the children to go ‑ ‑ ‑
Go on?‑‑‑ ‑ ‑ ‑ a direct court order rather than the children’s contact service.
(Transcript 4 June 2015, page 22 lines 43- 47, page 23 lines 1-30)
Later counsel for the father suggested to Dr D that, given the earlier recommended counselling had been unsuccessful, her present recommendation for therapeutic counselling was not viable and suggested to her that there then remained two options, either the children did not spend time with the father or that the court make orders and expect the parties to comply with them (transcript 4 June 2015, page 24 line 39 et seq). Dr D also agreed that it was unlikely that the parents would engage in therapy to improve their relationship (transcript 4 June 2015, page 23 line 6).
It was then suggested to Dr D:
You formed the view that [the father], if he’s not posing an unacceptable risk to the children, should play a role in the girls’ lives – Yes, …That is so but it is an ideal position … which I feel duty bound to have made but, having done that, I can certainly see the court’s view as well.
(Transcript 4 June 2015, page 25 lines 17-23)
Counsel for the father said to Dr D in examination:
And the reason [the father] puts forward as the children not wanting – saying that they don’t want to see their father is because they have adopted and possibly been inculcated into accepting the mother’s views about the father?
---Yes. I would agree with that.(Transcript 4 June 2015, page 28 lines 41-44)
Dr D further agreed that the children are effectively aligned with their mother.
Thereafter an exchange occurred between her Honour and Dr D in which her Honour raised with the expert the suggestion of the children spending time with the father, and after referring to the less than successful periods at the contact centre, the exchange continued:
[HER HONOUR]: …Even if I found that these children are being completely brainwashed by mum ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that mum’s absolute hatred of dad is being either covertly or overtly absorbed by these children – and let’s face it, it’s not just mum, it’s mum’s family. This is a family war ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ not just mum and dad war – where do I go because, you see, when I look at the legislation and I look at the objects of the Act in particular? The first one is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, and then it goes on and on and on, and then of course I get to section 60CC(2) and I have to protect the children – and this is the most important factor ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ from physical or psychological harm, from being subjected to abuse, neglect or family violence, and of course one form of abuse is psychological?‑‑‑Yes.
And I’ve got these two absolutely warring parties being aided and abetted by their particularly unhelpful members of each of their families telling them how right they are. There’s no reality testing of either of these people. They’ve never looked in the mirror and said, “Where did I contribute to that,” and quite frankly there’s nothing in the evidence that would suggest they’ve got the capacity to do that?‑‑‑Yes.
So how do I craft an order, even on Ms Horvat’s highest point, having found all those things – if I did; I’m not saying I would, but if I did ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ how do I craft an order that is going to make these children be able to have a relationship with their father where they don’t go from and back to a household where their father is loathed, where they are not challenged in any way about their views or perceptions of their father and where they are guaranteed to hear in both households how awful, dreadful, manipulative and lying the other household is, which has to be a form of psychological abuse?‑‑‑Yes.
So can you come up with a solution?‑‑‑I cannot, your Honour. I guess – I cannot. I cannot come up with a solution to that. There is none.
(Transcript 4 June 2015, page 38 line 42 to page 39 line 29)
Finally her Honour asked Dr D:
Can that be good for the psychological wellbeing of these children?--- Continuing litigation and witnessing more aggressive hostilities between the parents – and I don’t mean to say the children have to witness it face to face but they would gather … from each one is not in the best interests of children either.
(Transcript 4 June 2015, page 40 lines 7-13)
Her Honour’s reasons referred to the unsuccessful attempts at the children spending time with the father at a contact centre at [32] and her Honour observed at [28] that the children had been in the sole care of the mother for the best part of the last three years. Her Honour continued:
33. One of the things that Dr [D] suggested that could be tried if the court found that the father wasn’t any threat to the children was that the court just order time and the children would have to go. The mother said, if the court made an order she would comply with it. The reality is however that these children had already refused to go with their father in the protected environment of a children’s contact service.
34. To make an order that these children suddenly be collected by dad from school, where we have the background of the unsuccessful children’s contact service interactions and the completely negative attitude of the children as expressed to Dr [D] on the two occasions that she interviewed the children, is a recipe for disaster. It is again a stress on the children. It would inevitably result in the school, which is a safe place that the children obviously enjoy, being a place of handover with, almost all of the evidence before me, the accompanying inevitable conflict and stress for the children.
Her Honour then concluded:
35. And I see nothing in the evidence that suggests that these children would willingly go with their father to spend time without, as I say, perhaps – and that is a very big perhaps – a long, protracted therapeutic path that would have to be positively supported by both parties, neither of whom, to my mind, have that capacity. So I am unable to find on the evidence that at this point in their lives there is a benefit to the children of having a meaningful relationship with both of their parents.
…
38. As to the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence, I consider that to order that these children embark on a therapeutic process which is, on the evidence, all that to my mind would be available at this stage to try and repair their relationship with their father, is effectively subjecting the children to abuse.
The thrust of the arguments under these grounds devolves to a question of the weight that her Honour gave to the recommendations of the expert. It was contended that her Honour, having found that the father did not pose an unacceptable risk of harm to the children, ought to have adopted the expert’s view and ordered immediate unsupervised time between the children and the father. The submission however does not take into account the expert’s evidence to her Honour about the practical reality of her proposal.
Challenges to the weight or importance given to evidence by a trial judge face a high hurdle to succeed. It is necessary, as we have earlier said, to demonstrate that the challenged decision is “plainly wrong”. That has not been established in this aspect and her Honour’s conclusion and consequential orders were entirely open to her on the evidence.
It was further argued that her Honour erred when at [15] she described Dr D’s recommendation as an “idealised position that she felt duty and honour bound to put to the Court as to how things might be managed for these children.”
It was submitted that Dr D did not say that her position was “idealised” and her Honour’s mischaracterisation of it led her to error.
It was suggested to Dr D that the option of there being no time spent between the father and the children was: “not your ideal recommendation is it? You formed the view that [the father], if he’s not posing an unacceptable risk to the children, should play a role in the girls’ lives?”
Dr D said:
Yes, …That is so, but it is an ideal position … which I feel duty bound to have made but, having done that, I can certainly see the court’s view as well.
(Transcript 4 June 2015, page 25 lines 17-23)
We are unpersuaded that her Honour’s characterisation of Dr D’s recommendation was in fact wrong, but even if it was, it cannot be suggested that it was productive of material error.
Ground 13
Ground 13 contended that her Honour made no findings as to the reasons why the children did not wish to see the father nor made any assessment of the mother’s role in them forming that view.
From her Honour’s comments to Dr D which we have earlier set out, she contemplates the reason for the children’s views being the result of the mother’s inculcation in them of her own views about the father. However, it is also clear, that whatever the reason for those expressed views, the expert’s opinion ultimately was that there was no order which could be crafted which would allow the children to have a relationship with the father given the parties’ attitudes to each other.
We thus find no error in her Honour’s approach and these grounds are not made out.
Grounds 10, 16 and 17
Ground 10
Ground 10 asserts that her Honour erred in failing to make findings about the alleged family violence.
Given that counsel for the father told her Honour that she could not make positive findings on this issue (transcript 5 June 2015, page 167 lines 28-30), there can be no challenge to her Honour adopting the course urged on her by counsel for the father.
It is not clear whether this ground was pressed during the appeal hearing, but if it was, we reject it.
Ground 16
Ground 16 contends that her Honour failed to make findings as to the “primary considerations” contained in s 60CC(2) and further that she failed to give adequate consideration to the factors to which s 60CC(3) refers.
Both contentions are rejected.
Her Honour found that while there is an undoubted benefit to the children to have a meaningful relationship with the father (at [21]), there was no prospect of that occurring because of the toxic relationship of the parents to which they have both contributed (at [23]).
Further, her Honour concluded at [31] that to impose a regime of therapy on the children to develop such a relationship would, in the context of this family, be “penalising the children” by undergoing a process which had been tried by the parents and proven to be a failure and would be tantamount to subjecting them to abuse (at [38]).
Having come to those findings that it would not be in the children’s best interests to see their father, we wonder what purpose would necessarily be served by her Honour considering the matters to which s 60CC(3) speaks. However, in her reasons she considers the children’s views at [36]; the nature of the relationship of the children with their parents at [43]; the extent to which the parents have participated in long term decision-making relating to the children at [44]; the likely effect of any changes to the children’s circumstances at [46]; the capacity of the parents to provide for the needs of the children at [47] and the attitudes of the parents to the children and the responsibilities of parenthood at [50].
Thus, her Honour considered the primary and additional matters to which s 60CC speaks and this ground is without substance.
Ground 17
Ground 17 contends that her Honour failed to “follow the legislative pathway as set out in the case of Goode & Goode”. The substance of this ground mirrors that of Ground 16. This too must be rejected. Her Honour’s reasons clearly demonstrate her attention to the relevant issues.
Grounds 11 and 12
These grounds contend that her Honour made errors of fact.
Ground 11
Her Honour said that the father had not seen the children for three years because of the criminal charges against him. It was asserted, and agreed by the mother, that in fact, any impediment to the father spending time with the children created by the criminal charges was lifted in 2014 when the father was found not guilty of the charges. Thereafter, the father did not see the children because, it was asserted, the mother did not provide the children with that opportunity. It is to be noted that at that time, although the trial judge had earlier made orders that the children live with the mother, she had declined to make any order providing for the children to spend time with the father.
No submission was made as to the effect of this error and we see none. It was an error of fact but had no material effect (see De Winter and De Winter (1979) FLC 90-605).
Ground 12
Ground 12 contends that her Honour erred by not finding that once the father’s criminal charges were dismissed, he had filed an application seeking to spend time with the children. We see no materiality in this asserted error and we further observe that no submission was made to her Honour about the fact that such an application had been filed nor what her Honour should have found as a result.
This challenge is rejected.
Conclusion
As can be seen, apart from the appeal against paragraph 7 of the orders made by her Honour, which was conceded, we have found no merit in any of the other grounds of appeal. Thus, we will allow the appeal in part and set aside paragraph 7, but otherwise the appeal will be dismissed.
Costs
As is customary, we sought submissions from the parties on the question of the costs of the appeal at the end of the hearing to save them the time, trouble and expense of returning to court to make submissions at a later time.
If the appeal was to be allowed whether wholly or just in part, the father sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). For the mother’s part, if the appeal was wholly successful she too sought a costs certificate, but if it was dismissed in its entirety or allowed in part and otherwise dismissed, then she sought an order for costs against the father.
The appeal is to be allowed in part, but otherwise dismissed. In those circumstances we do not regard this as an appropriate matter in which to order a costs certificate. This is due to the fact that the error leading to the making of paragraph 7 of the orders was but a small part of the overall appeal.
We are also of the view that in this case, notwithstanding that the appeal has almost been wholly unsuccessful, it is not appropriate to make an order for costs in favour of the mother. The father earns a modest income, and while he has a home, it is encumbered.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Aldridge JJ) delivered on 28 July 2016.
Associate:
Date: 28 July 2016
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