SARGENT & SELWYN
[2020] FamCAFC 110
•11 May 2020
FAMILY COURT OF AUSTRALIA
| SARGENT & SELWYN | [2020] FamCAFC 110 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Sole parental responsibility – Spend time arrangements – Best interests – Adequacy of reasons – Challenges to the weight given to particular evidence – No errors of fact – No denial of procedural fairness – Allegation of bias – No merit in any of the 19 grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Slip rule – Appeal from order corrected pursuant to the slip rule – Accidental omission of words – Order correctly amended to reflect the Court’s intention – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Family violence – Where family violence was not an issue at trial – Where the material would not point to a different conclusion – Where the material was available at trial – No procedural unfairness if application dismissed – Application dismissed. FAMILY LAW – APPEAL – COSTS – Both appeals wholly unsuccessful – Father to pay the mother’s costs of the substantive appeal – Father to pay the Independent Children Lawyer’s costs of both appeals. |
| Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Slater v Light (2013) 45 Fam LR 41; [2011] FamCAFC 1 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 VR v RR (2002) FLC 93-099; [2002] FamCA 320 |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) Sadowski, Christine and Jennifer McIntosh, ‘On laughter and loss: Children’s views of shared time parenting and security post-separation’ (2016) 23(1) Childhood 69 |
| APPELLANT: | Mr Sargent |
| RESPONDENT: | Ms Selwyn |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 7405 | Of | 2013 |
| FIRST APPEAL NUMBER: | EAA | 142 | Of | 2018 |
| SECOND APPEAL NUMBER: | EAA | 125 | Of | 2019 |
| DATE DELIVERED: | 11 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Austin JJ |
| HEARING DATE (FIRST APPEAL): | 12 November 2019 |
| HEARING DATE (SECOND APPEAL): | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2018 17 October 2019 |
| LOWER COURT MNC: | [2018] FCCA 2836 [2019] FCCA 2929 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
Appeal no. EAA 142 of 2018 be dismissed.
Appeal no. EAA 125 of 2019 be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $880.
The appellant pay the Independent Children’s Lawyers costs fixed in the sum of $6,666.
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 Sargent & Selwyn 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 SYDNEY |
Appeal Numbers: EAA 142 of 2018 & EAA 125 of 2019
File Number: SYC 7405 of 2013
| Mr Sargent |
Appellant
And
| Ms Selwyn |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Mr Sargent (“the father”) and Ms Selwyn (“the mother”) have one child, X (“the child”), who was born on … 2012. On 4 October 2018, a judge of the Federal Circuit Court of Australia ordered that the child live with the mother, who was to have sole parental responsibility for him. The child was to spend four nights a fortnight during school terms and one half of the school holidays with the father.
The father appeals against these orders (Appeal no. EAA 142 of 2018).
The father also appeals against an order made on 17 October 2019 (Appeal no. EAA 125 of 2019), which corrected the accidental omission of a few words from one of the orders made on 4 October 2018 (Order 8(d)). The father filed a Notice of Appeal against that order, shortly after the hearing of the appeal from the orders made on 4 October 2018. Nonetheless, we considered that the most expedient course, in the interests of the parties and the Court, was for the same Bench to hear both appeals and for the second appeal to be heard by way of written submissions. As discussed in more detail below, this occurred, but it has meant that the delivery of these reasons for judgment was delayed whilst the parties prepared their written submissions in the second appeal, the last of which was received on 3 February 2020.
The mother and the father married in 2010. The precise date of separation was contentious but it was either in September 2013, October 2013 or December 2013.
Litigation ensued immediately with interim parenting orders being made on 20 December 2013, 22 January 2014 and 4 March 2014.
A final hearing took place before a judge of the Federal Circuit Court of Australia from 11 to 13 March 2015. Orders were made on 29 June 2015. The father appealed the orders made on 29 June 2015 and the upshot was that the appeal was allowed, the orders were set aside and the matter was remitted for rehearing.
The primary judge conducted the rehearing over five days between 30 April 2018 and 16 July 2018. Final orders were made and extensive written reasons for judgment were given on 4 October 2018.
The proceedings before her Honour, and indeed this appeal, were remarkable for the mother and the father’s excessive attention to detail. For example, the father’s trial affidavit came in four volumes with 889 pages of annexures (at [67]). The mother’s trial affidavit filed on 26 March 2018 consisted of 319 paragraphs with 224 pages of annexures. This is all the more astonishing because neither the mother nor the father suggested that the other posed any risk of harm to the child. It was also accepted that the child has a close, loving and meaningful relationship with each of his parents (at [88]).
Application in an Appeal
On 16 October 2019, the father filed an Application in an Appeal seeking to adduce evidence to “inform Appeal EA142/2018 including re Ground 17 ‘Family Violence Application’” (as per the original). The father’s proposed affidavit consisted of 101 paragraphs and 69 pages of annexures. This generated an affidavit and annexures totalling 54 pages in response by the mother.
The father’s Application in an Appeal was dismissed at the hearing of the appeal on 12 November 2019. These are our reasons for doing so.
Ground 17 of the Second Amended Notice of Appeal filed on 7 August 2019 states “[t]hat Her Honour Failed to Afford Procedural Fairness and Natural Justice, including re father’s ‘Family Violence’ Application filed 9 March 2018” (as per the original).
Whilst the mother had previously made allegations of family violence against the father, which occurred prior to separation, none was pursued at the trial and no evidence of any family violence was adduced by the mother. It followed that no consideration of family violence was required because it was not an issue at trial. Nonetheless, the father filed an Application in a Case on 9 March 2018, seeking orders requiring the mother to file a Notice of Risk and an affidavit providing “full and complete details, particulars and evidence including but not limited to all dates, times, locations, durations and reports regarding the allegations recorded in the Family Report” (the father’s proposed Order 2). It is apparent that the relevant allegations were claims of family violence. A further order proposed by the father required the Court to order cross-examination of witnesses and make findings of fact (the father’s proposed Order 4).
In short, the father attempted to make an issue of family violence, when it had not been raised as one by the mother. Apparently, the father’s aim was to force the mother to pursue her allegations of family violence, which as the father would have it, would not be accepted, thus vindicating him with a finding that he was not violent.
The father’s Amended Summary of Argument filed on 8 November 2019 deals with Ground 17 in the following way:
68.Her Honour did not, at any time during the trial including in the handling of preliminary matters, raise my “Family Violence Application”. I was prepared and ready to provide my written submissions and make oral submissions from the outset and Her Honour did not hear the parties thereon. Indeed, during the preliminaries, Her Honour rebuked me for attempting to be heard, per Transcript 30.4.18R2 P-5 Line 38. Her Honour, failed afford procedural fairness and natural justice
69.Her Honour’s Reasons at Para. 409 state extraordinarily that “To the extent that the father is concerned that [the Family Consultant] has been misled by the mother lying to her, he misses the point…”. I believe with this criticism Her Honour failed afford procedural fairness and natural justice.
(As per the original)
The father’s Application in a Case filed on 9 March 2018 came before a judge of the Federal Circuit Court of Australia (not the primary judge) for directions on 29 March 2018. No orders were made as to it. The primary judge noted that the transcript of that hearing recorded the judge who heard the application saying that the allegations of family violence were not going to assist the Court in determining the issues before it (at [7]).
The primary judge dismissed the father’s Application in a Case filed on 9 March 2018, without directly giving reasons for doing so.
However, in the course of discussing the father’s Application in a Case filed on 19 April 2018, which sought to transfer the proceedings to the Family Court of Australia, Her Honour said:
39.The reality is that there are no issues of family violence which have any impact on the outcome. It is fortunate for [the child] that he has two competent, caring and loving parents and that he has not been subjected to family violence as many children are exposed to and affected by. Rather, one of the central issues in this case is the parents’ dysfunctional communication and their inability to resolve issues expeditiously and the impact that this has on [the child].
40.The father again complained about the mother not filing a notice of risk and providing particulars of her allegations in his written submissions filed on 13 June 2018. Shortly before the matter was listed before me for oral submissions, the father filed further separate written submissions which were addressing his application in a case filed on 9 March 2018, despite the fact that the trial had been concluded. It is difficult to see what he seeks to achieve by doing so and provides another example of his obsessiveness.
41.What is very clear, and the father said this in his opening address, is that he is very offended and hurt by the allegations of family violence and maintains his innocence.
42.Despite the allegations the parties make against each other, no party asks me to make a finding that either party has been responsible for family violence.
43.Having heard the evidence and observed the parties, this is not a case where [the child] is at risk in either parent’s care due to family violence.
Her Honour also said:
404.The father is clearly aggrieved by issues with respect to allegations of family violence and focusses on the incident in 2013 where the mother attended [Suburb B] police station and took [the child] to a paediatrician. I emphasise that I have not been asked to make findings of family violence and declined to do so. The father was critical of the mother’s actions in 2013 in the lead up to and after separation.
The father’s proposed evidence does not demonstrate why these findings were wrong. If received, it would not point to a different conclusion because family violence was not an issue. The material was also available to be tendered by the father at the trial.
As her Honour’s reasons make clear, the father presented written submissions in support of his Application in a Case filed on 9 March 2018, which were taken into account, in addition to his extensive submissions in the substantive proceedings (at [40]).
We cannot see any procedural unfairness and the father’s proposed evidence does not identify any.
For these reasons, the father’s Application in an Appeal filed on 16 October 2019 was dismissed.
Appeal no. EAA 142 of 2018
Five of the father’s grounds of appeal challenge the adequacy of the primary judge’s reasons (Grounds 1, 2, 3, 4 and 5). However, we were informed in the course of the father’s oral submissions that Ground 1, which has seven sub‑grounds, was also intended to raise errors of law. This ground of appeal was further complicated because the father’s submissions, both oral and written, did not address the sub-grounds individually and instead they were divided into two broad arguments. We have, therefore, focussed on the father’s submissions and not directly on the sub-grounds of appeal.
As required, we shall deal with the father’s challenges to the adequacy of her Honour’s reasons first, although we will return to the balance of Ground 1 in due course (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The father also contends that the primary judge was biased (Ground 18). Ordinarily, this is a ground of appeal that would be dealt with even before considerations concerning reasons, however it was a minor aspect of the father’s appeal and shall be dealt with later.
The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
Ground 1: Reasons
Ground 1 states “[t]hat [h]er Honour erred at law and in failing to provide adequate reasons, or an adequate chain of reasoning, consistent with law and fact”. The seven sub-grounds of this ground of appeal are:
a.ordering sole parental responsibility
b.explaining how her Honour applied the various legislative provisions applicable to the case in reaching her conclusion
c.explaining how her Honour determined the best interests of the child by reference to section 60CC “factors”, noting particularly, that per section 60CC(2)(b), this case does not involve abuse, neglect or family violence
d.explaining any basis for the application of section 61DA(4) in conjunction with the Revised Explanatory Memorandum
e.finding that the evidence before her Honour reached a level at which it could reasonably be said to have rebutted the presumption, including evidence of: -
i.the Family Consultant that “Each parent reports that [the child] is settled at school, has made friends, and is excelling in all areas” [Report 2018 para. 40];
ii.evidence of the [mother] that “The decisions have been good for [the child]...” [Transcript 2.5.18 P-274 Line 1]
f.determining that the presumption of shared parental responsibility had been rebutted:
i.if, on the basis that it was not in the best interests of the child, then by determining this issue in whole or in part on irrelevant basis, being the parties “capacity to communicate with each other and resolve difficulties ...” [section 65DAA(5)(c)] and not section 60CC;
ii.if, on the basis that it was not in the best interests of the child, then by determining this issue, in whole or in part on irrelevant basis, being “psychological harm” not being “psychological harm” resulting from “abuse, neglect or family violence” [section 60CC(2)(b)] and not within section 60CC; or
iii.if, on the basis that it was “the order... least likely to lead to the institution of further proceedings...” [Section 60CC(4)(1)], then a basis for which there was no supporting evidence and that was on a basis not contemplated by the parties
[g.]That Her Honour erred in failing to scrutinise alternatives to sole parental responsibility and in failing to provide any adequate reasons for ignoring the Family Consultant evidence that the parties would benefit from “Individual work for each of these parents with somebody who’s highly experienced in this area? Yes[”]… and making an order per Family Law Act Section 13C
(As per the original)
The father’s submissions identified, as best as we can determine, the following areas where the primary judge’s reasons were said to be deficient:
·As to why the presumption in favour of equal shared parental responsibility did not apply because of s 61DA(4) of the Family Law Act 1975 (Cth) (“the Act”) and not s 61DA(2) of the Act (Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 26);
·No consideration was given to the primary factors in s 60CC(2)(a) and s 60CC(2)(b) of the Act and there was no reference to family violence; and
·No consideration was given to ss 60CC(3)(i), (j) and (m) of the Act.
In framing the issues for discussion, Her Honour said:
42.Despite the allegations the parties make against each other, no party asks me to make a finding that either party has been responsible for family violence.
43.Having heard the evidence and observed the parties, this is not a case where [the child] is at risk in either parent’s care due to family violence.
…
86.Despite the parties’ affidavit material, this case is not about family violence. There have never been any family violence proceedings. The issue for these parties is their rigidity and inability to communicate effectively and what impact this has on [the child’s] wellbeing.
87.Whilst both parties have raised allegations against the other, neither are raising a case that there is an unacceptable risk to [the child] in the other’s care. The allegations that each make against the other must be seen in this context.
The primary judge noted that one of the issues in dispute, as to the exercise of parental responsibility, was “whether or not [the child] needs counselling support and should be psychologically assessed” (at [93]). A portion of the transcript of counsel for the mother’s cross-examination of the father, as to how that issue might be resolved, if there was equal shared parental responsibility, was then noted. Her Honour continued:
95.Counsel for the [Independent Children’s Lawyer (“the ICL”)] asked the father if he could identify any advantages to one parent exercising sole parental responsibility. He said efficiency but he said that he did not think that efficiency and effectiveness were the same and that they have made great decisions for [the child] together, including [the child] attending … pre-school and [School B], and whilst the joint decision making was not efficient it was effective.
96.The father insisted that if he was successful in obtaining an order for equal time and the parents continued having equal shared parental responsibility, this would end the conflict from his end. The father would not accept the proposition that the parents have conflict even though they have equal shared parental responsibility currently. He said they have disagreements. The ICL’s Counsel suggested to him that many of those disagreements were with respect to issues of shared parental responsibility. The father replied “I think parents have disagreements where there is no court orders.”
97.The father referred to his proposed orders when he was asked what solutions he offers to resolve some of the conflict between the mother and himself. This includes an order that if the parties are unable to agree on [the child’s] secondary school, that they attend mediation. Counsel for the ICL made the point that the parties have had the assistance of [Ms C] for the past three years and this had not been successful. The father said this was successful with respect to the pre‑school.
98.The father said he could not recall asking the mother to approach a different counsellor for assistance. He was asked then why he had included orders for counselling and mediation in his proposed minute of orders. He said he would love to do that if the mother was interested, but it is his perception that the mother is not interested. He was then asked how that order could be successful if his perception was that the mother was not interested and he replied “because I think it would be in [the child’s] best interests if we were both interested.”
99.The father also said that he does not think that he and the mother have difficulties in communicating. As such as he thinks their communication is “precise, businesslike, even extensive.”
100.At the time of the 2018 family report interview, the mother was seeking sole parental responsibility with respect to education and health and shared parental responsibility with respect to other major long-term issues. Her position at trial had changed to simply seeking sole parental responsibility. The mother said that the decisions that they have been trying to make since the family report interviews have been very difficult.
101.I find that the presumption that the parents should exercise equal shared parental responsibility is rebutted in this case as it would not be in [the child’s] best interests for the parents to continue to try to make decisions for [the child’s] welfare together given their inability to do this effectively. It is not just the end result that matters.
(Emphasis in original)
The primary judge extensively surveyed the evidence and the parties’ submissions at [112]–[470]. These paragraphs make pellucid the finding that the mother and the father’s difficulties with communication were such that it was not in the child’s best interests that there should be equal shared parental responsibility.
This was reiterated at the end of her Honour’s reasons for judgment as follows:
240.The father put to the mother that they have made excellent decisions for [the child]. The mother agreed. The father continued to miss the point in this line of questioning. As I stated before, the issue is not the end result. The issue is the process of getting there. The question is what the impact is on [the child] when the parties go through this process.
…
472.I emphasise that that I am making the order for sole parental responsibility because it is not in [the child’s] best interests for the parents to continue to share it. It is not about rewarding the mother and punishing the father. It is simply unworkable for them to continue to share equal parental responsibility. Whilst the decisions made for [the child] such as the choice of [School B], have been good for him, the pathway to get there has not. It is not a case of there being isolated difficulties. The level of communication and the lengths it took to resolve the April 2018 school holidays is telling and cannot simply be explained away by there being uncertainty about the status of orders in place.
In short, the reasons for judgment clearly explain why s 61DA(4) of the Act applied. There was no need to discuss s 61DA(2) of the Act because no allegations of family violence were raised, as was noted by the primary judge. For the reasons that we have already explained, the father’s unsuccessful attempt to force the mother to make such allegations, does not raise considerations of family violence.
Accordingly, there was no need to discuss s 60CC(2)(b) or s 60CC(3)(j) of the Act. Section 60CC(2)(a) of the Act was expressly considered at [88].
We consider that s 60CC(3)(i) of the Act was considered, to the extent that it was relevant (neither the mother nor the father suggested that the other did not love the child or do their best to care for him responsibly), in the following paragraphs:
439.It is highly concerning that the father cannot see the need to protect [the child] from disputes between parents. Just because children ask questions does not mean that it is appropriate the parents answer in the same way they would to an adult. [The child] is a young boy, not at a developmental stage where he is able to process that type of emotion. Furthermore, even when [the child] reaches adulthood he will still be a child of both parents. Such information cannot be objective and cannot be helpful to [the child]. If the father continues to persist with engaging in these types of issues with [the child] he will be inflicting emotional harm on [the child] in the furtherance of the father’s interests and not [the child’s] best interests.
…
481.Their communication, which I have addressed at length, is not the only problem. The other is the significantly different parenting routines and styles. It is a matter of degree. Parents in intact families have different parenting styles. That is not a bad thing. However the differences in the two households go beyond that. The father’s evidence that he does not implement a bedtime routine for [the child] is concerning. It is also concerning that [the child] regularly co-sleeps with his father and uses nappies at his father’s home at night. At 6 years of age there should be no need to wear nappies at his father’s home. He does not do so at his mother’s and if his school friends knew this it would likely cause him embarrassment. Parents need to encourage their children to individuate. I am mindful of [the Family Consultant’s] evidence. Occasional co-sleeping is not a problem. Regular co-sleeping is. My impression is that it may be more reflective of the father’s needs than [the child’s].
482.It must be difficult for [the child] to navigate two very different regimes. His mother’s household is strict. His father’s household is the opposite. It is important that children have regular routines, particularly during the school week. It is concerning that the father does not see the distinction.
483.It may well be that the mother is too strict about bedtime routines. It would be beneficial for [the child] if he had a more consistent bedtime in both households but this seems unlikely. On one view, the fact that [the child] wakes up early but is required to stay in bed till 7:00am by his mother may indicate that he is going to bed earlier than he needs to in his mother’s home. It really is indicative of how different the households are. It is not limited to bedtime routines either. There are also issues of dental hygiene, which the father says he is now addressing, and breakfast routines.
Section 60CC(3)(m) of the Act was not referred to by her Honour, however, the father did not identify any other fact or circumstance that was relevant but was not considered.
We see no inadequacy whatsoever in her Honour’s reasons for judgment. There is no merit to this aspect of Ground 1.
Did the primary judge fail to provide adequate reasons as to why the mother or the father should have sole parental responsibility? (Ground 2)
The father submits that an assessment of whether the mother or the father should have sole parental responsibility should have been undertaken because both the mother and the father had a significant involvement in the child’s day to day parenting.
At the time of the hearing the child was living with the mother and spending four nights each alternate week and one night in the other week with the father. The father sought a move to equal time but only commencing in 2019. In the upshot, an order was made by the primary judge for the child to spend four nights, in a block period, each fortnight, with the father.
Thus, the child had lived and was to live, primarily with the mother. Logic and common sense dictate that, having decided that an order for sole parental responsibility would be made, the parent with whom the child is to spend most of his time, be the one with sole parental responsibility. It did not need to be the subject of separate discussion.
No error by the primary judge has been demonstrated.
Did the primary judge fail to provide adequate reasons for not making an order as to the child’s name? (Ground 3)
There was no issue at the hearing, or at any time for that matter, as to the child’s name.
In the father’s proposed Minute of Order filed on 13 June 2018, the father sought the following order: “[t]he parents are to refrain from directing the child … to maintain any information as ‘secret’ and the use of any other name” (Order 20).
The primary task of a Court is to resolve the controversies before it, in the aim of determining, in a parenting case, what orders are in the best interests of the child. It is not the Court’s task, however, to deal with every issue that a party seeks to place before it, especially where those issues are trivial, misguided or irrelevant (VR v RR (2002) FLC 93-099 at [29]-[30]; [36]). There was no issue as to the child’s name and no suggestion that it was likely to be changed. There was no point to the order sought by the father and the failure of the primary judge to deal with it, is entirely unsurprising.
Did the primary judge fail to provide adequate reasons for not making an order as to “secrets”? (Ground 4)
We have already set out the father’s proposed Order 20 as to secrets at [44] above.
The father submits that, as the mother had agreed to the order (Transcript 2 May 2018, p.253 line 31 to p.254 line 14), it should have been made.
It is, however, not as obvious as that, as the transcript makes clear. To understand the passage properly, it is necessary to record that the mother had accepted that she had asked the child to not tell the father her address:
[THE FATHER]: Do you agree that it is now unnecessary to request [the child] to withhold your address from me?
[THE MOTHER]: ---Yes.
[THE FATHER]: Would you agree to an order to that effect: that he not – that there’s no – that the parties are restrained from asking him to keep secrets?
[COUNSEL FOR THE MOTHER]: Your Honour, the broad order proposed doesn’t actually reflect what the questioning has indicated. Keeping secrets is a different topic. The witness has conceded that there’s no need for [the child] to keep the address a secret – an order of that nature.
HER HONOUR: Well, but she did give evidence that she told [the child] not to tell him.
[COUNSEL FOR THE MOTHER]: That’s correct – that - - -
HER HONOUR: That’s a secret.
[COUNSEL FOR THE MOTHER]: And she has now conceded, in cross-examination, that she no – there’s no longer a necessity for that.
HER HONOUR: Yes. And he’s now asking if she will agree to a restraint - - -
[COUNSEL FOR THE MOTHER]: About keeping secrets, full stop.
HER HONOUR: - - - with respect to keeping – well, you know what? I think it’s terrible for kids to tell them, “You need – you better not tell dad this – better not tell mum that.”
[COUNSEL FOR THE ICL]: Your Honour, for the record, the ICL supports the father’s question to the witness.
HER HONOUR: Yes.
[THE MOTHER]: Yes.
[THE FATHER]: Thank you.
(Transcript 2 May 2018, p.253 line 28 to p.254 line 16)
It is not entirely clear as to what the mother is assenting. However, if it was to the proposition now put by the father, that did not oblige the primary judge to make the order. Her Honour said, correctly, in our view:
432.The court does not grant an injunction simply because a party seeks it. There must be a proper basis for imposing restrictions or placing a positive obligation on the person.
433.Some of the orders sought by both parties descend into micromanaging parenting issues. It is not appropriate for the Court to make such orders. It will not assist the parents or [the child] and could well lead to further proceedings due to disputes about interpretation of such orders. I am mindful of the comments of the Full Court of the Family Court in VR & RR [2002] FamCA 320 at [32] where they state that it is not the court’s role to determine every dispute between parents who cannot not agree about how their children should be raised and that the Court should only interfere to the extent that it is in the child’s best interests to do so.
Her Honour also discussed the issue of secrets at [443] and so was alive to the issue. The combination of these paragraphs explains why no order was made, as sought by the father.
It follows that the father’s challenges to the adequacy of the primary judge’s reasons for judgment fail.
Ground 1: Errors of Law
We return then to Ground 1 and the errors of law that the father seeks to raise by it. Again, the father’s oral and written submissions, which raised two broad arguments, were not clearly linked to the sub-grounds of Ground 1.
The father’s first broad argument focuses on s 61DA(4) of the Act and asserts that this subsection is only enlivened where a parent lacks capacity and, in any event, that it cannot apply only when there is poor communication between the parents.
The father’s submissions, however, included the submission that the primary considerations in s 60CC(2) of the Act must be given greater weight and that a high bar must be met before an order for sole parental responsibility can be made. We do not accept this to be the case because it is contrary to the clear wording of the Act and the decided authorities (Mulvany & Lane (2009) FLC 93-404 at [76]-[77]; Aldridge & Keaton (2009) FLC 93-421; Slater v Light (2013) 45 Fam LR 41 at [45]).
Section 61DA(4) of the Act provides that the presumption of equal shared parental responsibility “may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
Self-evidently, that subsection makes no reference to the lack of capacity of a parent and contains no suggestion that it only applies when a parent is addicted to drugs or has a mental illness that similarly affects capacity, as submitted by the father. Rather, the test is the very broad “best interests” test which raises, for example, all the s 60CC considerations.
The references to a lack of capacity are, however, found in the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) (“the Explanatory Memorandum”) which introduced s 61DA(4) of the Act. Paragraph 134 of the Explanatory Memorandum states:
New subsection 61DA(4) provides that the presumption will be able to be rebutted where its application would not be in the best interests of the child. For example, where there are no issues of violence or abuse but a parent is addicted to drugs in such a manner that he or she is unable to make decisions for the benefit of the child or has a mental illness that similarly affects the capacity to share decision making. This is appropriate as under section 60CA the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.
The matters raised by the father are but examples given in the Explanatory Memorandum. There is no suggestion in it, or the section of the Act itself, that it is to be limited in the manner suggested.
In any event, the Court’s task is to apply the terms of the section of the Act itself. As no ambiguity arises in s 61DA of the Act, there is no need to have regard to the Explanatory Memorandum. The father’s submission is not accepted.
It follows, therefore, that the primary judge did not need to explain or give reasons as to why the father lacks capacity so as to be deprived of any parental responsibility.
The father’s second broad argument is yet another attempt by the father to raise issues of family violence, although this time through the evidence of the Family Consultant.
The father’s written submission was:
2.In relation to the second broad argument;
a.Her Honour’s findings were significantly influenced and founded upon the “conclusions” of the Family Consultant;
b.the Family Consultant’s “conclusions” were founded upon a mix of assumptions, allegations and speculation limiting evaluation of any “scientific” approach;
c.the Family Consultant’s evidence and opinions were significantly influenced and founded upon the acceptance of the allegations made by the mother;
d.at the time the Family Consultant was unaware of the extent to which these allegations made by the mother were not accepted by her Honour;
e.the findings on the evidence of the mother re the allegations of family violence impacted mother’s credibility
(Father’s Amended Summary of Argument filed on 8 November 2019) (As per the original)
The father’s submission continued that the only basis for the change in the recommendations made by the Family Consultant in her report dated 13 January 2015 and her report dated 22 February 2018, was that in the latter report, the allegations of family violence made against the father were taken into account. The father submits that “any consideration of the opinions expressed in the Family Report by her Honour, without identifying the failings of the report involved a consideration of irrelevant and/or unreliable evidence.” (Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 17).
In the Family Consultant’s report dated 13 January 2015, the Family Consultant opined that equal shared parental responsibility was appropriate and that she favoured the continuation of the child spending one night each week with the father.
In the Family Consultant’s report dated 22 February 2018, the Family Consultant’s opinion had changed and she considered that the mother should have sole parental responsibility for the child and that the child should spend four nights a fortnight with the father. The father believed that this was because the Family Consultant was now concerned about “family violence, communication and the handovers” (at [304]) when that had not previously been the case.
The father cross-examined the Family Consultant about the mother’s allegations that the father had been stalking her. The primary judge, without challenge from the father in this appeal, summarised that evidence as follows:
339.The father asked [the Family Consultant] about the references to stalking in her report. She said that she is not suggesting that the father has or has not stalked the mother, rather this is what mother has told her. [The Family Consultant] rejected the suggestion that she placed weight on those comments making recommendations. She said there were a number of factors that led to her recommendations, one of those was to protect [the child] from negative interaction between parents and she considered it to be a very important factor.
340.[The Family Consultant’s] notes reflect that she described it as ‘stalking’ but the mother in her interview referred to the father following her. The father put to [the Family Consultant] that the evidence of the mother was that although the family report had referred to several occasions that she had seen the father in the vicinity of her home, she conceded that it was only one occasion. Significantly [the Family Consultant] said that that did not affect her recommendations. She also confirmed that the question about stalking was part of risk assessment tool question five which is as follows “has your ex-partner threatened to harm you or somebody close to you or behaved in a manner that was threatening to you or somebody close to you, threatening gestures, stalking?”.
341.When [the Family Consultant] was asked why her recommendations would not change upon learning that the mother’s allegations were incorrect about stalking, she said:
It’s the totality of the parents’ inability to negotiate, to compromise, the inflexibility. Everything that happens in relation to [the child’s] life it seems to have to be researched, numerous emails, consultations with [Ms C], the involvement of lawyers, emails and an inability to make decisions in a timely manner for [the child]. And I think that’s unfortunate. These parents love their child. He’s an only child. And if I could have a magic wand and change it for [the child] I would, but I don’t. And that might sound a bit flippant, but these parents do the best they can, but they get caught up – not in [the child] and what his needs are – but in some sort of dynamic – unconscious struggle between the two of them. And maybe that’s a function of their normal personalities, but they get caught up in the minutiae. And I just worry about what’s going to happen to [the child] over time if this continues.
(Footnotes omitted)
As the above passages explain, rather than relying on the allegations of family violence, the Family Consultant focussed on the issue of communication. For example, the primary judge also recorded the following explanation:
354.[The Family Consultant] said that she recommended that the mother have sole parental responsibility for major decisions and also day‑to‑day decisions because the parents disagree on the minutiae and that that further perpetuates conflict on [the child]. [The Family Consultant] mentioned the example of the shoes for school and said that if both parents turned up at school with shoes for [the child], he could have been in a dilemma as to whose shoes to take and this could have caused embarrassment, exposing him to gossip in the teacher’s lounge and exposing him to his friends asking why both parents would turn up with shoes for him. She said “I think that dramatically demonstrates the concerns I have [for] the [child].”
(Footnotes omitted) (As per the original)
Her Honour came to the following conclusion:
368.The concerns [the Family Consultant] expressed about the conflict between the parties and her concerns about the impact of the continuing dysfunctional communication on [the child] reflect my own concerns as I have listened to and assessed the evidence of this case. It is clear from her evidence that [the Family Consultant] well understood that this is not a case about family violence. It is not a case about unacceptable risk. It is a battle of minds.
The issue of family violence as raised by the father is a red herring. It is quite clear from a simple reading of the Family Consultant’s report dated 22 February 2018 itself, and the above findings, that the recommendations made in that report were not made as a result of allegations of family violence.
There is no merit in this ground of appeal.
Ground 5
Under this ground of appeal, the father submits that the primary judge erred in law and failed to give adequate reasons for:
·explaining how the best interests of the child had been determined by reference to all s 60CC factors; and
·the decision that the child would spend four nights per fortnight with the father, as opposed to five nights per fortnight or equal time with the father.
The father’s submissions are based upon the premise that “equal time will be appropriate in most cases” (Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 43) and that the child was doing well, especially at school, when spending five nights per fortnight with the father.
As to the adequacy of the primary judge’s reasons, it is apparent from what we have written already and from even a cursory reading of her Honour’s reasons for judgment, that they constitute a full explanation of how the various statutory provisions were applied to the facts in this case.
The primary judge explained why she did not make an order for equal time and instead made an order for four nights per fortnight and not five at [478]–[487].
The reasons are, therefore, adequate.
The father’s real complaint is that the primary judge did not make the orders sought by him. That does not establish error. However, to make it perfectly clear, we do not accept that “equal time will be appropriate in most cases” (Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 43).
Rather, the Court is compelled to look at all the circumstances in the matter and, if the Court is satisfied that it is in the best interests of the child that there should not be an order for equal time, then that is the course that the Court must follow. (ss 60CA, 65AA and 65DAA(1)(a) of the Act – noting that the latter section did not apply in this case because the parents were not to have equal shared parental responsibility for the child).
This ground of appeal has not been established.
Did the primary judge err by making an order that the child spend (religious) New Year with the mother (Order 10(h))? (Ground 6)
The father submits that Order 10(h) ought not to have been made because “culture” was not an issue and was not discussed in the primary judge’s reasons for judgment; the father was not accorded procedural fairness because the proposed order was not addressed during the hearing; and the order would affect the father’s time with the child.
The order was sought in the mother’s Minute of Order filed on 18 July 2018 (the mother’s proposed Order 13). The father was therefore on notice of it and had the opportunity to address it. He was thus accorded procedural fairness and the fact that he chose not to respond to it does not point to the contrary (Kioa v West (1985) 159 CLR 550).
Further, as the mother’s proposed order was not addressed by the father at all, her Honour was entitled to proceed on the basis that there was no opposition to it. As it was, on its face, an unremarkable order (unlike the applications for injunctions sought by the father) it was properly made, on the basis that it was not opposed. There was no need for it to be justified by findings as to culture.
The fact that the order will have the effect of impinging on the time that the child will spend with the father is a consequence of the order but not a reason for not making it.
Did the primary judge err by giving insufficient weight to the social science research relied upon by the father? (Grounds 7 and 8)
The father relied upon published articles which he asserted were well regarded and persuasive. He said that the articles supported orders for equal time and a finding that the mother was alienating the child against the father.
The father cross-examined the Family Consultant on these articles, which the primary judge summarised at [311]–[326]. Her Honour then concluded:
327.What the father fails to appreciate is that these articles have little practical application in this case. I have to determine this case in accordance with its own facts and assess the evidence I have heard. The articles do not advance the father’s case. Despite the parties being highly intelligent and well-educated and polite they have not been able to find a way to communicate effectively. This is notwithstanding the fact that they have engaged [Ms C] to assist them with this since 2014. The conflict between the parties is high. High conflict does not only involve matters where one or both parties are abusive. Communication can be ineffective when it is voluminous as is the case here.
328.[The Family Consultant] agreed that abuse and neglect is not a factor in this case. The father then asked [the Family Consultant] to agree with the proposition that this article has been influential research with respect to the care of children. She replied that he would need to ask an academic. She accepted that the research is one that is in her “toolkit”. She accepted that it is supportive of equal time parenting arrangements “in particular circumstances”.
The father did not address the above paragraphs in his submissions on the appeal so as to identify any error in them. We cannot see one. The weight to be given to evidence is particularly a matter for a trial judge. The primary judge’s findings were open on the evidence.
No error has been established.
Did the primary judge err at law or fail to give adequate reasons for dismissing the father’s Application in a Case filed on 9 March 2018? (Ground 9)
We extensively discussed the father’s Application in a Case filed on 9 March 2018 at the outset of these reasons and explained that it was completely misconceived with no relevance to the proceedings. Her Honour identified these difficulties and correctly dismissed the application.
No error has been identified.
Did the primary judge err by placing weight or significant weight on the mother’s evidence? (Ground 10)
In the father’s Amended Summary of Argument filed on 8 November 2019, the father listed what he submits are criticisms of aspects of the mother’s evidence made by the primary judge. Of the 11 instances recorded by the father, some certainly are criticisms (such as particular evidence being an exaggeration), but others are simply a finding that the mother’s evidence on a particular point was not accepted. Some are not findings at all and are merely recordings of the father’s concerns (such as at [409] where her Honour said “[t]o the extent that the father is concerned that [the Family Consultant] has been misled by the mother lying to her”).
First, a trial judge is entitled to accept some parts of a witness’s evidence and to reject other parts (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322; Sahrawi & Hadrami (2018) FLC 93–857 at [59]).
Secondly, the issues covered by the findings identified by the father are few in number and trivial. The real issue was not, for example, the number of times that the child was “flipped” on the bed by the father many years earlier (the father’s first and fifth complaints) or the number of emails that were sent at a particular time (the father’s third complaint).
The real issue in the matter was the inordinate and extensive communication between the mother and the father on the smallest of issues, which was uncontrovertibly established by emails, school records and the like, and did not depend on the acceptance of the mother’s evidence. Any criticism of the mother’s evidence by her Honour was of very little moment indeed.
Did the primary judge err in affording weight or any significant weight to the evidence of the Family Consultant? (Ground 11)
The father submits that the Family Report dated 22 February 2018:
·was influenced by “false family violence allegations” and contains “family violence errors” (as identified in the father’s Application in a Case filed on 9 March 2018 and supporting affidavit);
·was biased against the father;
·did not meet Australian standards; and
·was compromised by “other errors”.
(Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 54)
The father further submits that the transcript indicates that the Family Consultant discussed her evidence with the ICL “whilst under affirmation”.
The suggestion of bias can be immediately rejected because the father did not address any submission to us in support of that contention, other than to say that the Family Consultant was biased because she did not record his denial of the mother’s allegations of family violence. We do not see that this follows at all.
We have already pointed out that the Family Consultant’s opinion was not based on allegations of family violence (at [339]–[341]; [368]). Further, the primary judge did not base her decision upon the Family Consultant’s evidence but noted that the Family Consultant’s views reflected her Honour’s own concerns ([368]).
The father did not raise the assertion of non-compliance of the Family Report dated 22 February 2018 with “Australian standards” or “Family Violence Principles” with the Family Consultant during cross-examination. We do not know whether she would have agreed that this was so or provided any explanation as to the effect, if any, that any failure to comply might have on the validity of the matters recorded in the report or the opinions expressed. It is now too late to take the point, as it would be most unfair to do so (Metwally v University of Wollongong (1985) 60 ALR 68).
We are unable to find any passage in the transcript that records the Family Consultant agreeing that she spoke to the ICL whilst giving evidence. It is apparent that she did give the ICL a document, which was ultimately tendered by the ICL (Exhibit “K”), as the following passage records,:
[THE FAMILY CONSULTANT]: … What I did at lunchtime, your Honour, was photocopy a paper that I briefly referred to.
HER HONOUR: Yes?
[THE FAMILY CONSULTANT]: ---And it may well be that it’s not appropriate for the parents to have it until after their final submissions are made, but I’ve given [the ICL] copies.
(Transcript 4 May 2018, p.411 lines 18–23)
This was not further explored in the evidence. However, even if the Family Consultant did speak to the ICL and discussed her evidence, that discussion, of itself, would not undermine her evidence or, more precisely, those aspects of her evidence that were discussed. For that to occur, it would have to be demonstrated that the conversation improperly affected the Family Consultant’s subsequent evidence.
It follows that this ground of appeal does not succeed.
Did the primary judge err by giving insufficient weight to the father’s evidence? (Ground 12)
In light of the principles as to weight to be given to particular evidence, for example, Gronow v Gronow (1979) 144 CLR 513, the father’s simple submission that “[i]n the circumstances, the father’s evidence ought to be given great weight” (Father’s Amended Summary of Argument filed on 8 November 2019, paragraph 61) is incapable of establishing error.
Did the primary judge make numerous errors of fact? (Ground 13)
The father submits that the primary judge made nine significant errors of fact as set out at paragraph 62 of his Amended Summary of Argument filed on 8 November 2019.
They are not errors of fact. Rather, the father simply asserts that a different finding should have been made, which is insufficient to establish error. One example will suffice.
On 13 November 2017, the child’s teacher requested that a pair of shoes be purchased for a school performance. This led to many emails between the mother and the father, copied to the teacher, as to who was to purchase the shoes. They could not agree. They then each bought the shoes and there were further emails as to who would give the shoes to the child.
The primary judge discussed this seemingly trivial, but telling, incident as follows:
354.[The Family Consultant] said that she recommended that the mother have sole parental responsibility for major decisions and also day‑to‑day decisions because the parents disagree on the minutiae and that that further perpetuates conflict on [the child]. [The Family Consultant] mentioned the example of the shoes for school and said that if both parents turned up at school with shoes for [the child], he could have been in a dilemma as to whose shoes to take and this could have caused embarrassment, exposing him to gossip in the teacher’s lounge and exposing him to his friends asking why both parents would turn up with shoes for him. She said “I think that dramatically demonstrates the concerns I have [for] the [child].”
…
473.I have given some consideration about whether or not I should make a modified parental responsibility order giving the mother sole parental responsibility with respect to some major issues and not others but given the parties’ inability to resolve even minor issues simply such as [the child’s] uniform and shoes I think such an order could lead to further conflict between the parties.
(Footnotes omitted) (Emphasis in original)
The father submits that the primary judge erred by not finding that the issue in relation to the shoes had a successful outcome and that it demonstrated successful communication (because the shoes were obtained).
There was no error simply because a finding was made that did not suit the father. The course taken by the primary judge was amply open on the evidence.
The same can be said for the other errors asserted by the father.
There is no merit in this ground of appeal.
Did the primary judge err by failing to specify the weight given to evidence admitted by s 69ZT of the Act? (Ground 14)
Section 69ZT of the Act provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings unless the Court orders otherwise. Section 69ZT(2) provides:
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
This section does not oblige a trial judge to identify every single piece of evidence in the proceedings which would not have been admissible but for s 69ZT and identify the weight that was given to it. The passage referred to by the father in Amador v Amador (2009) 43 Fam LR 268 at [66] is not authority for that proposition, but the more limited proposition, that where a document is admitted which would not have been admissible but for s 69ZT, some indication should be given as to the weight that was given to it. That was of significance in that case because the document that was admitted was a medical report which covered issues of importance.
Further, in any event, it is apparent that the primary judge did, in fact, place considerable weight upon the evidence identified by the father for the purpose of this ground, because they were stark examples of the mother and the father’s marked difficulties with communication.
Did the primary judge err in the conduct of the case? (Ground 15)
The father submits that he was, in effect, denied procedural fairness because whilst the primary judge limited the hearing to issues that arose after 1 July 2016, the reasons for judgment referred to many earlier incidents.
This ground of appeal mistakes what actually occurred.
The relevant passages of the transcript are:
[COUNSEL FOR THE ICL]: … However, it will be my view that the evidence in this trial should be, really, focussed on any events that have occurred since the final orders were made in 2016 and only a limited amount of time should be spent on historical things that occurred before [a judge of the Federal Circuit Court of Australia] determined the matter.
HER HONOUR: So I think the reality is, is that there has been a significant amount of time that has passed since that first trial and we have gone from a toddler to a school aged boy and arrangements and the like. So going over every incident that has occurred in 2012, ’13, ’14, ’15 isn’t going to assist the court in making the decision as to what’s going to be in [the child’s] best interests moving forward.
…
[THE FATHER]: And I agree that some of them may still be relevant but I agree, probably, the focus of the case might be best placed – so whilst they might – some of them might need to be raised, I think the focus of the case – I’m happy to say the focus of the case can be from – for example, the focus of the case could be from 1 July 2016, because that’s the last, more or less, two years…
HER HONOUR: Look, and I think that is very sensible. And can I tell you, it’s not going to be necessary to raise every historical issue that you disagree with, because I don’t need to make findings about them all or go through them, you know…
(Transcript 30 April 2018, p.9 line 14 to p.10 line 3)
Whilst there was to be a focus on more recent and relevant issues, for obvious reasons, there was no barrier to raising earlier issues.
This ground of appeal does not succeed.
Should the journal article “Christine Sadowski and Jennifer McIntosh, ‘On laughter and loss: Children’s views of shared time parenting and security post-separation’ (2016) 23(1) Childhood 69” have been received into evidence? (Ground 16)
This was the journal article that the Family Consultant believed the mother and the father should read and which she handed to the ICL to be given to the mother and the father, as already discussed above. It was tendered by counsel for the ICL (Exhibit “K”). The father did not object to the tender and now cannot complain that it became part of the evidence.
In any event, as we have discussed, her Honour eschewed any reliance on social science articles, which would include this one.
Thus, not only is this ground of appeal not made out, but it is completely pointless.
Did the primary judge refuse to hear the father on his Application in a Case filed on 9 March 2018? (Ground 17)
This issue has already been extensively discussed above. The father’s complaint is that when he tried to be heard on his Application in a Case filed on 9 March 2018, he was not and, in fact, he was rebuked (Father’s Summary of Argument filed on 8 November 2019, paragraph 68).
The father relies on the following exchange:
[COUNSEL FOR THE ICL]: So if we have to go into day 3, we will go into day 3.
HER HONOUR: And if it goes into day 4, it goes into day 4 and that’s it. That’s the - - -
[COUNSEL FOR THE ICL]: Well, I hope we don’t go that far, your Honour, but day 3, certainly, I - - -
HER HONOUR: Yes. Sir, you don’t put your hand up.
[THE FATHER]: Sorry.
HER HONOUR: You get a – I’m going to give you a chance to respond, but you’ve been in court enough to know.
(Transcript 30 April 2018, p.5 lines 30–43)
Thereafter, the father was given the opportunity to address the Court, which he took up (Transcript 30 April 2018, p.6–7).
No error by the primary judge has been identified.
Was the primary judge biased? (Ground 18)
The father submits that the primary judge was biased because:
71.At the commencement of the trial [the father] outlined [his] concerns re the heinous “family violence” allegations and Her Honour responded [Transcript 30.4.18R2 P-9 Line 23] “The fact that there aren’t particulars with respect to allegations is – actually assists you, if anything, not harms you [emphasis added]. That can only infer guilt and is clear “bias”.
72.Her Honour’s Reasons state at paragraph 416 that “The Father is being highly selective with respect to the provisions of the Family Law Act…”. This is clear “bias”.
(Father’s Amended Summary of Argument filed on 8 November 2019) (As per the original)
The relevant passage of the transcript is:
HER HONOUR: … The fact that there aren’t particulars with respect to allegations is – actually assists you, if anything, not harms you. It’s up to [the mother] to put her case, just as it’s up to you to put your case…
(Transcript 30 April 2018, p.7 lines 30–33)
There, her Honour was saying that the lack of particularity as to mother’s allegations assisted the father because vague and unparticularised allegations are likely to carry little weight. We are quite unable to see any inference of guilt whatsoever.
Further, the father did not ask the primary judge to disqualify herself and it is now too late to raise the issue (Vakauta v Kelly (1989) 167 CLR 568).
The finding at [416] that the father referred to in paragraph 72 of his Amended Summary of Argument is:
416.I rejected the submissions of the father that [the Family Consultant] has effectively found him guilty of family violence and that that is the premise for the order for sole parental responsibility. The father is being highly selective with respect to the provisions of the Family Law Act and [the Family Consultant’s] evidence. What is clear is the father does not accept [the Family Consultant’s] evidence that her recommendations would not change if the stalking allegations were untrue.
Whilst this may be a finding that the father does not like, it does not indicate bias of any kind. It is simply an explanation as to why the finding was made. Bias is not demonstrated merely by a judge making an adverse finding about a party (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]).
This ground of appeal fails.
Are the primary judge’s orders plainly unreasonable, unjust or wrong? (Ground 19)
No oral or written submissions were addressed to this ground of appeal which, accordingly, fails.
Conclusion
The appeal will be dismissed.
Appeal no. EAA 125 of 2019
On 14 November 2019, that is two days after Appeal no. EAA 142 of 2018 had been heard by us and judgment was reserved, the father filed a Notice of Appeal against a further order made by the primary judge on 17 October 2019 (an Amended Notice of Appeal was filed on 6 January 2020).
Order 1 made on 17 October 2019 provided:
Order 8(d) of the Orders dated 4 October 2018:
That for the purposes of these orders school holidays are defined as follows:
…
The school holidays end before school on first day of school term; and
be deleted and replaced with:
That for the purposes of these orders school holidays are defined as follows:
…
The school holidays end at 5:00pm the night before the school term commences; and
On 5 December 2019, over the objection of the father, orders were made for the two appeals to be heard together and for Appeal no. EAA 125 of 2019 to proceed by way of written submissions. Despite the clear and simple nature of the primary judge’s order made on 17 October 2019, the father’s Summary of Argument filed on 6 January 2020 contains 159 paragraphs. The mother’s Summary of Argument filed on 28 January 2020 contains 87 paragraphs. The length of the mother and the father’s respective written submissions did not assist in understanding the points sought to be made.
The primary judge was asked to invoke the “slip rule”, which permits a judge to correct an accidental slip or omission in orders so as to give effect to the Court’s intention as expressed in the reasons for judgment. It does not permit reconsideration of the issue (Burrell v The Queen (2008) 238 CLR 218 at [21]). This power is reflected in r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth). The father’s references to the Family Law Rules 2004 (Cth) in his written submissions are misconceived (although these rules are not in dissimilar terms).
In the primary judge’s reasons for judgment delivered on 4 October 2018, her Honour said:
468.It is necessary to be prescriptive with respect to the school holidays order. The beginning, mid-point and end of the holidays must be clearly defined. The first and second half of the holidays should be rotated between the parties, as is the usual practice. I have considered whether or not the beginning and end of the holidays should be from school to school. Whilst this would work for the midterm school holidays, it makes sense for [the child] to be in his mother’s care before the commencement of the school year. For this reason, I will define the school holidays as ending at 5:00pm the night before school term commences. That will apply to all the school holidays for consistency. There may be times when there are an uneven number of days in the school holidays. In the event this occurs, the parent who has care of [the child] for the first half of the school holidays will have an additional day. As the first and second half of the holidays will be rotated between the parents this should prevent either parent complaining about unfairness. I accept the ICL’s submissions in this regard that it makes no difference from [the child’s] perspective.
(Emphasis added)
However, at the time that the orders were made, the words “at 5:00pm the night before” were omitted from Order 8(d), which defined when the school holidays were to end.
As the primary judge had the clear intention of including these words in the order, the order was correctly amended pursuant to the slip rule. Indeed, it is difficult to imagine a more obvious case for the appropriate correction of orders than this one.
The slip rule is designed to prevent unnecessary appeals over accidental slips and the fact that an appeal is available does not mean that the rule does not apply.
None of the father’s written submissions cast any doubt whatsoever on the primary judge’s decision and thus this appeal will be dismissed.
Costs
In the event that the appeals failed, the ICL sought an order for the payment of costs in both appeals. The sums sought by the ICL are $4,576 in Appeal no. EAA 142 of 2018 and $2,090 in Appeal no. EAA 125 of 2019. The mother said that she had sought legal advice in relation to Appeal EAA 142 of 2018, in the sum of $880 and, accordingly sought an order that the father pay her costs of that appeal in that amount.
The appeals have been wholly unsuccessful and thus the father should pay those costs (s 117(2A)(e) of the Act).
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 11 May 2020.
Associate:
Date: 11 May 2020
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