Sawyer & Reid
[2009] FamCAFC 33
•10 March 2009
FAMILY COURT OF AUSTRALIA
| SAWYER & REID | [2009] FamCAFC 33 |
| FAMILY LAW - APPEAL – CHILDREN – Appeal against parenting orders– Not established that trial Judge failed to conduct trial in accordance with appropriate procedures – Not established that differential treatment of parties when giving evidence constituted a denial of procedural fairness – Not established that trial Judge erred in giving liberty to only one party to apply on short notice to set aside, vary or suspend orders – Not established that trial Judge erred in findings of fact – Not established that trial Judge failed to provide adequate reasons – Not established that trial Judge made orders inconsistent with the legislation. FAMILY LAW - PRACTICE AND PROCEDURE – Amendment under “slip rule” – Whether the trial Judge made orders which were inconsistent with his reasons – Whether the “slip rule” should be applied – Where it was unclear whether the “slip” occurred in the trial Judge’s orders or reasons for judgment. FAMILY LAW - APPEAL – COSTS – appellant to pay the costs of the respondent and the Independent Children’s Lawyer – costs of Independent Children’s Lawyer fixed. |
| Family Law Act 1975 (Cth) ss 60B(1)(a) & (2), 60CC(2) & (3), 61DA, 69ZR(1) & (3) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] 160 ALR 588 |
| APPELLANT: | Mr Sawyer |
| RESPONDENT: | Ms Reid |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gathercole |
| FILE NUMBER: | SYF | 3923 | of | 2005 |
| APPEAL NUMBER: | EA | 131 | of | 2006 |
| DATE DELIVERED: | 10 March 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray and Le Poer Trench JJ |
| HEARING DATE: | 1 September 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 November 2006 |
| LOWER COURT MNC: | Reid & Sawyer [2006] FamCA 1216 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Self Represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Simpson SC |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Turner Whelan |
Orders
That the appeal against the orders of the Honourable Justice Rose made on 15 November 2006 is dismissed.
That the appellant pay the costs of the respondent of and incidental to the said appeal to be assessed under the Family Law Rules 2004 in default of agreement.
That within 28 days of the date of these orders the appellant pay the costs of the Independent Children’s Lawyer of and incidental to the said appeal, fixed in the sum of $3,591.50.
That pursuant to Rule 17.02 of the Family Law Rules 2004, Order 2 of the orders made on 15 November 2006 is varied by inserting the following words after the first sentence, “Save in circumstances of emergency, the mother shall consult with the father prior to making decisions with respect to health and education issues involving the said children.”.
IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Reid is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA131 of 2006
File Number: SYF 3923 of 2005
| Mr Sawyer |
Applicant
And
| Ms Reid |
Respondent
REASONS FOR JUDGMENT
Introduction
We are required to determine an appeal against orders made by Rose J in proceedings between Mr Sawyer (“the father”) and Ms Reid (“the mother”) concerning their sons G and J.
The orders, which were made on 15 November 2006, provided for the children to live with the mother. The orders also made provision for the children to spend time with the father:
· each alternate weekend;
· each alternate Wednesday night; and
· for one half of school holidays.
The father’s appeal principally challenges the order for the children to live with the mother. He otherwise complains about three specific orders.
The first order concerns the allocation of parental responsibility for health and education issues. This order was in the following terms:
(2)That the mother have the sole parental responsibility for making decisions with respect to the health and education issues involving the two children save for any urgent medical treatment that any of the two children may require whilst in the care of the father.
The second order sought to be impugned contained a variety of injunctions (“the non-denigration orders”). These are replicated below:
(13)That the father:
(a)shall not denigrate the mother to or in the presence or hearing of the two children;
(b)shall do all acts and things necessary to encourage the two children to speak positively to and about the mother;
(c)shall discourage the two children from speaking negatively to or about the mother or acting aggressively towards the mother.
The final order challenged by the husband was in the following terms:
(17)Liberty is granted to the mother to apply for orders setting aside, suspending or varying all or any of the Orders made this day upon three days written notice being given.
For reasons which will become apparent, it is important we record there was no order formally dismissing the mother’s Application or the father’s Amended Response, although there was an order that “the proceedings be removed from the Acting Pending Cases List”.
The father’s appeal is resisted by the mother and by the Independent Children’s Lawyer.
Background
The father and mother were married in May 1996 and separated in August 2005.
There were two children of the marriage, G, born in February 1999, and J, born in February 2001. At the time of trial, the children were aged 7 and 5 years respectively.
At the time of trial, the mother was 41 years of age and was working part‑time. The father was 51 years of age. He was not working, having been enrolled in a variety of courses at tertiary institutions over many years.
The father had not re‑partnered after separation. The mother had commenced an intimate relationship with another man, but was not living with him.
Interim orders were made in December 2005 for the children to live primarily with the mother, while spending time with the father (inter alia each alternate weekend from after school on Thursday until commencement of school the following Tuesday). Orders were also made restraining each party from denigrating the other in the presence of the children or discussing the proceedings with them.
“Day 1” of the trial was conducted by Rose J in February 2006 in accordance with what was then known as the Children’s Cases Program and a family report was ordered. In the following month, the father pleaded “guilty” in a State Court to a charge that he had assaulted the mother. He was placed on a bond.
The trial was completed at a three day hearing in July 2006, after the commencement of significant amendments made to Part VII of the Family Law Act 1975 (“the Act”) by the Family Law Amendment (Shared Parental Responsibility) Act2006. Judgment was delivered in November 2006.
The trial Judge’s judgment
Having set out the orders sought and the background information we have summarised above, the trial Judge recited the legal principles he intended to apply.
His Honour made particular reference to the objects of Part VII of the Act and the principles underlying them. In doing so, his Honour stressed that the object which requires the Court to take into account the benefit to the children of their parents having a “meaningful involvement in their lives” was subject to what he called the “important exception” that such involvement must be consistent with the children’s best interests.
The trial Judge also made reference to the 2006 legislative amendments which had come into effect shortly prior to the final hearing. In discussing the amendments, his Honour stressed that the continued emphasis of the legislation was upon the principle that the children’s best interests were the paramount consideration.
His Honour next turned to findings of credit. He found the mother to be a witness of truth, whereas he found “the father’s evidence at times to be evasive and exaggerated as well as engaging in prevarication” which led him to conclude that the father was a witness who was “economical with the truth”.
His Honour then discussed the inter‑relationship between the “primary considerations” in s 60CC(2) and the “additional considerations” in s 60CC(3). He observed that findings to be made in relation to the “primary considerations” depended to a considerable extent upon findings made concerning the “additional considerations” and therefore foreshadowed that he would discuss the “additional considerations” before moving to the “primary considerations”.
The trial Judge first discussed the views expressed by the children and their relationships with their parents (and with the mother’s gentleman friend). He concluded that at the time of preparation of the family consultant’s report, G wanted to spend the greater period of time living with his father and J wanted to spend marginally more time with his father than with his mother. However, his Honour found that the children’s views had “been influenced to a material degree by the antagonistic attitude by the father to the mother”. He went on to accept the mother’s evidence that since preparation of the family report, there had been a significant improvement in the children’s behaviour when in her care, associated with a much improved relationship with her friend.
The trial Judge found that the children had a loving relationship with the mother. Although this relationship had been subjected to stress and tension, his Honour found this had “been largely due to the manipulative actions of the father combined with his very negative attitude towards [the mother]”. He also found that the children had gradually developed a more positive relationship with the mother’s friend.
His Honour also found that the children had a loving relationship with the father. In fact, he found their attachment to him was “probably closer than with the mother”. Nevertheless, his Honour found that there were disturbing aspects of the relationship due to the father’s “manipulation”.
In dealing with issues of family violence, the trial Judge found that the father had engaged in “family violence” within the meaning of the Act. He declined to find that the mother had engaged in violent and abusive conduct as alleged by the father.
His Honour made generally positive findings in relation to the mother’s capacity to provide for the children’s physical, emotional and intellectual needs and accepted her evidence that her consumption of alcohol was no longer the problem it had been in the past.
The trial Judge found that the father had the capacity to provide for the children’s physical needs (although noting his limited financial resources). However, he found that the father had a “very limited capacity” to provide for the children’s emotional needs, which he saw reflected in the father’s conduct and attitude towards the mother. The judgment went on to describe that behaviour in some detail.
In dealing with the likely effect of any changes in the children’s circumstances, the trial Judge accepted the family consultant’s view that there may be problems with the children regardless of the parent with whom they lived. If they were to live primarily with their mother the children, in particular G, may have a strong desire to spend more time with their father; but on the other hand living with the mother would ensure that they lived in a “nurturing home free from the corrosive influences of the father”.
In dealing with the children’s maturity, lifestyle and background, the trial Judge referred to some of the boys’ behavioural issues, at least some of which he considered may have been related to the conduct of the father.
His Honour accepted that each party loved and was devoted to the children but that the father had shown “a limited approach to parental responsibilities” whereas the mother had carried out her parental responsibilities (albeit in the face of difficulties created by the father).
In dealing with the question of which order would be least likely to lead to the institution of further proceedings, the trial Judge considered that it was “not reasonably possible to consider such an order” in the circumstances of the case, inter alia because of the entrenched conflict between the parties.
His Honour then turned to consider the orders he should make in light of his findings. He noted that both parents were seeking sole parental responsibility and concluded that each sought the rebuttal of the presumption in favour of equal shared parental responsibility contained in s 61DA of the Act. In any event, his Honour concluded that the presumption had been rebutted, inter alia because of his finding that the father had engaged in “family violence”. Furthermore, his Honour found that s 61DA(4) of the Act applied because an order for equal shared parental responsibility would not be in the best interests of the children. This finding was based, amongst other things, on the poor communication between the parents; the impact of the father’s behaviour; and the fact that the mother had taken on almost sole responsibility for matters associated with the children’s health and financial support.
Given the specific challenge made to the order concerning equal shared parental responsibility, we should set out in full paragraph 152 of the judgment in which his Honour indicated the order he proposed to make.
152.It is for those reasons that I am satisfied that the ground set forth in section 61DA(4) has been made out and as a consequence the mother will have the sole parental responsibility so far as issues of education and health of the two children, although being required to consult the father except for circumstances of emergency.
His Honour went on to record that the father’s positive parenting in relation to the children’s awareness of various religious tenets and the benefits of multi‑cultural society had led him to conclude that joint parental responsibility in relation to those matters and all aspects of parental responsibility – except for education and health – should be shared between the parents.
His Honour then recorded that he considered it would be in the best interests of the children that they primarily live with the mother and spend regular periods of time with the father. In setting out his reasons for coming to this decision, his Honour referred to the primary considerations set out in s 60CC(2) which his Honour recited and which are in the following terms:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
His Honour then noted that the findings of fact he had made demonstrated that the two primary considerations contained in s 60CC(2) were to some extent “interrelated”. He explained this by saying:
The reason is that the violent behaviour of the father, the subject of my earlier findings, have [sic] impacted to a degree upon the two children having a meaningful relationship with not only him but also the mother.
The trial Judge went on to record that he accepted the evidence of the family consultant that the two children were likely to benefit from the father’s parental commitment should they live with him but he found that “the benefit may be overtaken by the continued exposure of the two children to the father’s negativity in relation to the mother”. On the other hand he accepted that the mother had demonstrated that she would “encourage and facilitate time and communication with the father”.
His Honour then returned to the views expressed by the children regarding their preference to live with the father, but noted that G was still a young boy who had “been subjected to the negative attitudes and conduct of the father towards the mother”.
In determining the amount of time the children should spend with the father, his Honour said:
164.Difficulties also arise in relation to issues of periods of time that the two children should spend with the father in terms of their best interest. The dilemma is that it would be very much to the benefit of the two children for them to be removed from the sphere of destructive influence that the father exercises so far as its impact upon the relationship the two children have with the mother and the emotional development of the two children. Yet, on the other hand, I accept the evidence of the mother as well as the family consultant that it would be distressing for the two children and especially [G] if orders were made preventing them from either spending any time at all indefinitely with the father or, for a significant period of time.
165.As a consequence, orders will be made which enable the two children to spend regular periods of time with the father both in school term and during school holidays notwithstanding that it creates the potential for him to destabilise them and to diminish the benefits to their development and relationship with the mother as a consequence of primarily living with her.
166.Unfortunately, there is no perfect solution. The key to the two children progressing well emotionally and in all other aspects lies in the hands of the parties and especially the father. Therefore, the father needs to consider the harmful effects of his behaviour upon the two children who are each fragile in different ways.
His Honour went on to consider orders relating to professional assistance being made available to the parents and the children.
In dealing with issues relating to denigration of one parent by the other, his Honour said:
174.There will be orders that restrain each of the parties from denigrating the other in the presence or hearing of the two children and from discussing the proceedings with them or either of them. The father should be well aware that any breaches by him of such orders may result in an application being made by the mother on short notice for the setting aside, varying or suspension of the relevant parenting orders as well as an order for payment of her legal costs. A breach of the orders may also create the potential for a contempt application being filed. I will make the appropriate order to enable the mother to bring the relevant application on short notice.
His Honour concluded his judgment by indicating that he intended to make an order restricting the father from attending at the children’s school.
Appellate principles
The circumstances in which an appellate Court can legitimately interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Grounds of Appeal
The father set out eight grounds of appeal in his original Notice of Appeal filed in December 2006. There was considerable delay in the appeal being prosecuted. It seems this was the result of the father’s failure to comply with procedural requirements. In any event the father’s Summary of Argument was not filed until October 2007.
At the commencement of the hearing before us, it was apparent that the father’s Summary of Argument better encapsulated his complaints about the decision than did his original grounds of appeal. It was therefore agreed that the appeal should proceed on the basis that the Summary of Argument represented his grounds of appeal.
The Summary was brief indeed and we repeat it in full below:
It is my submission that the decision of Justice Rose be set aside on the grounds that His Honour:
1. Has been misled by the Independent Children’s lawyer.
2.In the trial His Honour has not followed the parameters he has outlined in the procedural hearing of the 3rd of May 2006.
3.Has not conducted the trial in accordance with the Children’s Cases program directions or with the spirit of the program.
4.Within the trail has gagged the respondent (now applicant) father, preventing him from presenting the whole of his evidence.
5.Has made findings of fact on which are not supported by the evidence. [sic]
6.Has not properly explained his reasoning for the judgment.
7.Has made orders which do not concur with the given reasons of the judgement.
8.Has made orders which are at odds with the Family Law Act 1975 as it existed on the 7th of July 2006.
Ground 1 – Conduct of the Independent Children’s Lawyer
In his Summary of Argument the father submitted that his Honour had been “misled” by the Independent Children’s Lawyer. This proposition was effectively abandoned in the course of argument and properly so. Nothing to which we were referred provided any basis for concluding that his Honour had been “misled”.
Ground 2 – Failing to adhere to procedural parameters
By this ground the father asserts that the trial Judge did not follow certain “parameters” he had outlined at an early stage of the proceedings.
The father’s submissions focused on a remark made by the trial Judge on “Day 1” of the trial. In the course of that preliminary hearing, the Independent Children’s Lawyer advised his Honour that there had been a “few incidents” at the place where the children received after school care and sought permission to issue a subpoena to ensure evidence concerning those incidents was provided. In response, his Honour said:
Well that might be appropriate. I mean, if it is a historical event, you know, that hasn’t occurred of recent times then it would seem to be a bit of a non sequitur. I mean, if some child misbehaved a year ago, is it terribly relevant any longer? [Appeal Book 2, p 261]
In light of this observation/question by the trial Judge, the father submitted that it was inappropriate for evidence to have been allowed at the trial concerning an incident(s) when one of the children had run away, since the incident(s) had allegedly occurred outside the time period which his Honour had indicated was “relevant”. The father submitted that this issue had been a “core matter” in his Honour’s consideration of the credibility of the parties.
We can find no substance in this complaint. It appears to be based on a misunderstanding of an “off the cuff remark” made at a very early stage in the proceedings when deciding which witnesses needed to be called. As reference to the citation above will confirm, his Honour did no more than pose a question. He made no direction limiting the matters that could be explored at trial. More importantly for present purposes, the issue which the husband considers to be a “core matter” in the decision was not even the subject of passing reference in his Honour’s judgment.
Grounds 3 and 4 – Conduct of the trial
The father dealt with Grounds 3 and 4 together in his submissions. By these grounds the father asserted that the trial had not been conducted in accordance with the “Children’s Cases program directions” nor in accordance with “the spirit of the program”. In particular, the father complained that he had been “gagged” from presenting the whole of his evidence.
In support of his propositions the father referred to the Practice Direction underpinning the Children’s Cases Program and in particular paragraph 4.2.3 which provides that “each party has the right to be heard in keeping with the rules of natural justice and procedural fairness”.
The father complained that the mother had been afforded “the right to be heard” but he had not. The father referred to a number of excerpts from the transcript which he submitted demonstrated he had been “constantly interrupted” and prevented from offering a full answer to questions, whereas the mother had been allowed to give full answers to questions and to expand and digress without interruption.
We accept that on a number of occasions, the father was “cut off” during the course of his oral evidence – sometimes by the trial Judge and sometimes by counsel. We were not referred to any instances where the mother was similarly “cut off”. On the other hand, it is important to note that the mother and counsel for the Independent Children’s Lawyer had no reason to anticipate that this issue was to be the subject of submission by the father.
In any event, the father himself conceded that it was “perfectly normal” for witnesses to be prevented from digressing when answering questions. Furthermore, the father did not refer us to any instance where complaint was made by his counsel at trial concerning him being cut off or about the mother being permitted to digress.
Differential treatment of parties in the witness box does not constitute a denial of “natural justice and procedural fairness” – especially where the different treatment was meted out by counsel and not by the trial Judge. Different techniques are required with different witnesses to ensure that the evidence they give is relevant and to the point and that precious court time and resources are not squandered by loquacious witnesses.
It is also important to keep in mind that both parties had been given the opportunity to provide all of their evidence-in-chief by affidavit. The father provided an affidavit comprising 419 paragraphs, spread over 46 closely spaced pages. The affidavit contained much material of little or no relevance. By way of one example only, selected at random, we replicate paragraph 289 of the father’s affidavit in which he described his home:
In the vegetable garden there is Pumpkin, sunflowers, watermelon, bananas, lemons, tomatoes, passionfruit, avocado and a mulberry tree. A herb garden is currently under construction. Flowering plants are quite abundant with sunflower, a huge hibiscus hedge, orange blossom, serum and frangipani just to name those which I am familiar with.
By way of contrast, the mother provided an affidavit comprising 50 paragraphs, contained within 15 less closely spaced pages. The mother’s affidavit concentrated on matters that could reasonably be considered relevant, without descending to the minutiae.
The different approach adopted by the parties in providing their affidavit evidence would, in itself, have justified a different approach to the presentation of their oral evidence. The father’s written evidence demonstrated a propensity to consider as being relevant many matters which were entirely irrelevant and it was therefore appropriate for a far tighter “rein” to be used on him.
There is accordingly no substance in this complaint.
Ground 5 – Findings of fact
The father’s summary of argument made a bald claim that findings of fact were made by the trial Judge which were not supported by the evidence. These were not specified in the father’s grounds of appeal nor in his summary of argument. It was accordingly impossible for the mother and the Independent Children’s Lawyer to prepare for the case the father presented at the hearing before us.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] 160 ALR 588, Gaudron, Gummow and Hayne JJ considered the “real advantages” enjoyed by trial judges in making findings of fact. With respect, we adopt what their Honours said (at 619):
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. (footnotes omitted)
In the present matter, the father referred us to a miscellany of factual findings, however nothing he advanced in the course of his submissions persuaded us that the trial Judge erred in making any of the findings about which he complained.
Ground 6 – Inadequate reasons
By this ground the father complained that his Honour had not “properly explained his reasoning for the judgment”.
There is no substance at all in this ground. The short summary we have provided earlier in these reasons indicates the clear process of reasoning by which the trial Judge arrived at his conclusion.
Ground 7 – Making orders inconsistent with the reasons
In the course of his oral submissions the father drew attention to what he asserted were discrepancies between the trial Judge’s reasons and some of his orders. All of the relevant paragraphs of the reasons and the relevant orders have been replicated at the commencement of these reasons.
The first discrepancy related to paragraph 152 of the reasons and Order 2, which dealt with allocation of parental responsibility.
The discrepancy upon which the father relies is apparent. In paragraph 152, his Honour indicated that although the mother would be given sole responsibility in relation to issues of education and health, she would be “required to consult the father except for circumstances of emergency”. This proviso was not repeated in Order 2.
The mother readily accepted there was a discrepancy and invited us to make an order by consent amending Order 2 so as to require her to consult with the father concerning matters of health and education, save in circumstances of emergency.
We should observe that this discrepancy could have easily been resolved by application being made to the trial Judge pursuant to the “slip rule” (see Rule 17.02 of the Family Law Rules 2004). However, given the consent of the mother, we will make the appropriate amendment when making orders disposing of the appeal.
The second alleged discrepancy to which the father referred was that between paragraph 174 of the reasons and Order 13, which dealt with the non-denigration orders.
Again, we accept there is a discrepancy between what his Honour said in his reasons and the order he ultimately made, in that he foreshadowed in his judgment that he would make injunctions against both the mother and the father, but ultimately made orders only against the father.
Although recognising the inconsistency, the mother expressed strong opposition to any amendment to the non-denigration orders. She drew attention to the many adverse findings made by the trial Judge concerning the behaviour of the father towards her and drew attention to the absence of any similar findings in relation to her own conduct. Accordingly, she submitted that there was no justification for non-denigration orders being made against her. She expressed concern that if such orders were made, it would “just open up the chance for [the father] to file contraventions and make claims I have denigrated the children”.
Although we accept there is a discrepancy, it is not apparent to us whether the error is contained in the reasons or in the orders. We accept the submission made by the mother that there would appear to be no findings of fact which would have justified the making of non-denigration orders against her. Furthermore, when regard is had to the balance of paragraph 174 (in which only the father was warned of the consequences of breaching the injunctions foreshadowed), it appears possible that the infelicity of expression is contained in the reasons, not the orders.
We have given consideration to the question of whether or not the mother ought to be permitted to adopt the position outlined above in relation to the non-denigration orders in the absence of a cross‑appeal in relation to the first sentence of paragraph 174 where his Honour indicated he would make such orders against her, as well as against the father. We have concluded that the mother was under no obligation to file a cross-appeal for two reasons.
First, the statement made by the trial Judge in the first sentence of paragraph 174 was not a finding of fact but rather an indication of an intention to grant certain injunctions. As it turned out, no injunctions were granted against the mother.
Secondly, given the way in which the father drafted his grounds of appeal and his Summary of Argument, the mother was not on notice that the omission of non-denigration orders against her was the subject of appeal. In this regard it is noteworthy that in both his Notice of Appeal and in his Summary of Argument, the father set out the orders he proposed should be made in the event the appeal succeeded. He did not propose that the non-denigration orders should be made against the mother, but rather proposed the discharge of the orders made against him.
Given the unsatisfactory manner in which the issue was agitated before us and given that it is not readily apparent whether the error made was in the reasons or the orders, we do not consider it appropriate that we apply the “slip rule” to correct the inconsistency. Nor are we satisfied that his Honour erred in granting injunctions only against the father. On the contrary, the failure of his Honour to make non-denigration orders against the mother is entirely consistent with his judgment read as a whole. It is a matter now for the father to determine whether he should make application under the “slip rule” for his Honour to correct the inconsistency that he has identified.
The final claimed discrepancy also relates to paragraph 174 of his Honour’s reasons. The alleged inconsistency on this occasion relates to Order 17, by which liberty was granted only to the mother to apply for orders setting aside, suspending or varying his Honour’s orders. The father’s position at the hearing before us was that Order 17 should be varied so as to provide that both parties would have liberty to apply, although such an order was not sought in the Notice of Appeal.
The father’s position on this point is linked to the discrepancy already identified between paragraph 174 of the reasons and Order 13. As we understand the father’s position, he considers that as his Honour intended that both parties would be the subject of the non-denigration orders in Order 13, it would logically follow that both parties should have the opportunity to apply on short notice for the setting aside, variation or suspension of the parenting orders in the event the other party breached those orders.
In determining this controversy it is significant to note that although his Honour removed the matter from the Active Pending Cases List, he did not dismiss the mother’s Application or the father’s Amended Response. Accordingly, in our view, the orders should be treated as being interim orders only.
We also consider it important to note that Order 17 does not in any way purport to prevent the father from applying for orders setting aside, suspending or varying any of the parenting orders that were made by the trial Judge. Nor did Order 17 carry with it any implication that findings or orders would be made in favour of the mother in the event she exercised the liberty given to her to apply.
Accordingly, we consider that Order 17 is nothing more than a case management order designed to give some priority to any application the mother may wish to bring in seeking amendment of the parenting orders.
The reasons for such an order being made are clear when considered in the light of his Honour’s reasons for judgment. His Honour was clearly most concerned about the impact on the children of the father’s “destructive influence”. The dilemma his Honour faced in this regard was identified by him in paragraphs 164 to 166 of his reasons which we have set out above.
It is apparent from consideration of those paragraphs that his Honour had considered as an option the removal altogether of the children from the father’s “destructive influence” and that he only refrained from making such orders because of the distress that would be occasioned by such an order. His Honour warned, however, that “the key to the two children progressing well emotionally and in all other aspects lies in the hands of the parties and especially the father” and that “therefore, the father needs to consider the harmful effects of his behaviour upon the two children who are each fragile in different ways”.
It was no doubt in light of these concerns that his Honour said (in paragraph 174) that “the father should be well aware that any breaches by him of [the injunctions] may result in an application being made by the mother on short notice for the setting aside, varying or suspension of the relevant parenting orders …”
In these circumstances, we consider it was appropriate for his Honour to have included a mechanism in his orders to allow the mother to bring the matter back before the Court on short notice in the event of any alleged breach of the injunctions, since his Honour considered that such breaches would be likely to have a significant adverse impact on the children’s emotional wellbeing.
We should also observe that there was no indication in his Honour’s orders that the matter would be relisted before him in the event that the mother exercised the liberty he had given her. We express no view as to whether it would be appropriate for the matter to be relisted before his Honour and note only that we did not receive any submissions to indicate whether or not the provisions of Division 12A of Part VII of the Act applied to these proceedings (and in particular ss 69ZR(1) and (3) which deal with the circumstances in which a judicial officer can be disqualified in matters where findings have already been made and issues determined).
Ground 8 – Making orders inconsistent with the legislation
In his summary of argument the father asserted that the trial Judge “made orders which are at odds with the Family Law Act 1975 as it existed on the 7th of July 2006”.
The father’s written submissions provided no particulars of the manner in which he asserted that the orders made were inconsistent with the legislation (which had been amended shortly prior to the commencement of the final part of the trial). His Honour was, however, well aware of the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act2006 and considered carefully the implication of the introduction of the concept of “primary” and “additional” considerations contained in s 60CC of the Act.
In his oral submissions the father made brief reference to the consideration contained in s 60CC(2)(a) which requires the Court to take into account “the benefit to the child of having a meaningful relationship with both of the child’s parents”. In this regard, we note that his Honour made express reference to that consideration but properly pointed out (in paragraphs 24 and 26 of his reasons) that this consideration must be assessed in the light of s 60B(1)(a) and s 60B(2) which emphasise that the overarching concern is the best interests of the child.
The only other proposition advanced by the father to suggest that the orders were “at odds” with the legislation concerned the application of s 60CC(3)(g) which requires the Court to take into account “the maturity, sex, lifestyle and background … of the child …” The father submitted that the trial Judge had not taken into account the fact that the children “are boys and I am also male and that I am more able to help them as I grew up as a male”. By way of example the father said that the boys could have infected penises and would not wish to talk to their mother about this.
Apart from what we would regard as self evident weaknesses in the father’s proposition, we note that there has been no express challenge against his Honour’s finding at paragraph 150 of his reasons that “the mother has almost solely taken on the responsibility and carried out that responsibility in respect of care arrangements for the two children [and] their health…”
We therefore find no merit in this ground of appeal.
Conclusion
Apart from the discrepancies between the reasons and orders (one of which we propose to rectify by application of the “slip rule” and another which we are unable to remedy), we have found no merit in any of the propositions advanced by the father. The appeal will therefore be dismissed.
Costs
Both the mother and the Independent Children’s Lawyer sought an order for costs in the event the appeal was dismissed. The mother was self represented at the hearing of the appeal but informed us that until recently she had had legal representation. The costs of the Independent Children’s Lawyer were met by the legal aid authority and we were advised that the amounts payable pursuant to the grant of aid totalled $3,591.50.
The father opposed an order for costs on the basis that he was in receipt of social security entitlements and did not have any assets of significance. The mother challenged the father’s assessment of his financial position.
Whilst we accept that the father may be in difficult financial circumstances, we consider the overwhelming factor to be taken into account is that the father’s appeal was entirely without merit (save for matters which could have been corrected by application of the “slip rule”). We therefore consider that orders for costs in favour of both the mother and the Independent Children’s Lawyer are warranted.
We do not consider that we should put the legal aid authority to the further expense of having costs assessed. In determining that the amount sought by the Independent Children’s Lawyer is appropriate, we have taken into account the fact that (acting on advice of the Bar Council) it was considered necessary for the Independent Children’s Lawyer to be represented by alternative counsel on the hearing of the appeal given that the father had put in issue the conduct of counsel for the Independent Children’s Lawyer at trial.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 10 March 2009
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