SCARLETT & BRADSHAW
[2019] FamCAFC 184
•24 October 2019
FAMILY COURT OF AUSTRALIA
| SCARLETT & BRADSHAW | [2019] FamCAFC 184 |
| FAMILY LAW – APPEAL – PARENTING – Spend time arrangement – Graduated regime of time – Where the parties agree that they should have equal shared parental responsibility and that the child should live with the mother – Where the primary issue for the trial judge was determining the time and manner in which the child would spend time with the father – Whether the trial judge, faced with two competing graduated regimes of time, made orders for a third graduated regime of time, and failed to give reasons for doing so – Where the trial judge was not bound to make one or the other of the sets of orders proposed by the parties and was free to formulate his own orders – Where the trial judge’s reasons are clear and soundly based on the evidence – Whether the trial judge failed to take into account the capacity of the parties to implement the spend time arrangement having regard to s 65DAA(5)(b) and (c) of the Family Law Act 1975 (Cth) – Where the trial judge had regard to the matters set out in s 65DAA(5) – Whether the trial judge erred by having regard to the expert witness’s recommendations despite making a finding that the expert witness did not fully appreciate the father’s poor impulse control – Where the orders made did not mirror the expert witness’s recommendations – Where a trial judge is entitled to accept some parts of a witness’s evidence and not accept other parts – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application in an Appeal to adduce further evidence – Where the father provided a Response to the mother’s application to adduce further evidence – Where the further evidence of both parties is accepted insofar as it relates to the father’s completion of an anger management course – Where the applications are otherwise dismissed. FAMILY LAW – APPEAL – COSTS – Order made for the filing of written submissions as to costs, as requested by the parties. |
| Family Law Act 1975 (Cth) s 65DAA |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 67 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Ms Scarlett |
| RESPONDENT: | Mr Bradshaw |
| FILE NUMBER: | SYC | 4319 | of | 2014 |
| APPEAL NUMBER: | EA | 165 | of | 2018 |
| DATE DELIVERED: | 24 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Austin & Tree JJ |
| HEARING DATE: | 22 May 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 November 2018 |
| LOWER COURT MNC: | [2018] FamCA 982 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Christie SC |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Coleman SC |
| SOLICITOR FOR THE RESPONDENT: | Manning Lawyers |
Orders
The Application in an Appeal filed 3 May 2019 and the Response to an Application in an Appeal filed 20 May 2019 are allowed in part, so as to receive on the appeal the evidence of the parties as to the respondent’s completion of the anger management course, but the applications are otherwise dismissed.
The appeal is dismissed.
Any party seeking an order for the costs of the appeal is to file written submissions within 28 days, with the opposing party to file any written submissions in reply within a further 14 days. The party seeking the costs may file submissions in response within a further seven (7) days.
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 Scarlett & Bradshaw 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 Number: EA 165 of 2018
File Number: SYC 4319 of 2014
| Ms Scarlett |
Appellant
And
| Mr Bradshaw |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 November 2018, a judge of the Family Court of Australia made orders resolving a parenting dispute between Ms Scarlett (“the mother”) and Mr Bradshaw (“the father”).
The parties have one child, X, born in 2013 (“the child”). The orders provided that the parties would have equal shared parental responsibility for the child, but that she was to live with the mother. A suite of orders provided for the child to spend time with her father, with that time increasing progressively, up to and including the year 2022.
From the date of the orders until the expiration of three weeks, and subsequently until the father completed an anger management course, the child was to spend approximately two hours with him each Tuesday and Thursday and six hours on each alternate Sunday, with that time to be supervised by the child’s nanny.
Once an anger management course had been completed by the father, the child was to spend unsupervised time with him until the end of Term 2 in 2019, from after school until 5.30 pm each Tuesday, and from 8.00 am to 5.00 pm each Sunday.
Thereafter, the time that the child was to spend with the father increased in a number of steps so that from the conclusion of Term 3 in 2020 the child was to spend time with the father from after school on Thursday until before school on Monday, each alternate week, and from after school on Wednesday until before school on Thursday in the other week.
The trial judge also made a number of property orders between the parties which are not the subject of this appeal.
The mother has appealed against the orders providing for the child to spend time with the father. Although approached in different ways throughout the appeal, the essence of the complaint was that the time the child is to spend with the father increased too quickly and provided for too much time too early.
The mother also appealed against an order that from the conclusion of Term 1 in 2021 and subject to the father’s completion of an anger management course, in the event that the wife was unable to care for the child for a period of at least 24 hours, the father was to be given the first opportunity to do so. Order 22, which permitted the mother to take the child overseas for up to three weeks at a time was also subject to appeal but as no meaningful submissions were directed to it, we shall say no more about it.
Background
The parties commenced living together in November 2006 and were married in 2007. They separated in June 2014.
The hearing commenced on 28 February 2017 and concluded on 6 March 2017. One of the issues at the hearing was whether or not the father had been violent to the mother. The evidence of both parties addressed this issue.
At about the time of the hearing, or perhaps slightly earlier, the father separated from Ms W, a person with whom he had commenced a relationship in late 2014.
On 9 April 2017, there was a serious argument between the father and Ms W, which led to the father being charged with assault. On 24 April 2017, the father pleaded guilty to that offence.
On 18 December 2017, the mother was permitted to reopen her case to call evidence from Ms W as to the assault.
Ultimately, the trial judge concluded that the father “has tended to minimise the extent of his aggressive behaviour towards” the mother (at [203]). This included instances of physical violence. In doing so his Honour took into account the evidence of Ms W. There is no challenge to those findings.
The order requiring the father to complete an anger management course can thus be readily explained.
The Appeal
The Amended Notice of Appeal filed 6 March 2019 raised six grounds of appeal. Ground 5 was abandoned in the mother’s Summary of Argument filed 17 April 2019. Grounds 4 and 6 were said to arise from the mother’s Application in an Appeal to adduce further evidence, which was filed 3 May 2019. We shall return to that matter shortly.
Did the trial judge, faced with two competing graduated regimes of time, make orders for a third graduated regime of time, and fail to give reasons for doing so? (Ground 1)
The gravamen of this ground as stated in the mother’s Summary of Argument filed 17 April 2019 is that:
The reasons for the selection of the regime and for concluding that same was or more importantly would be in [the child’s] best interests are not apparent.
(Mother’s Summary of Argument filed 17 April 2019, paragraph 8)
It was common ground between the parties that parenting orders should be made providing for them to have equal shared parental responsibility and for the child to live with the mother. The issue, therefore, became the time and manner in which the child would spend time with the father. Each party proposed a graduated regime of time, which differed as to the speed at which increased time was to be introduced and the time that the child would ultimately spend with the father.
As recorded by the trial judge (at [4]) the mother proposed:
…
· that the child spends time with the [father] following completion of an anger management course on a gradually increasing basis commencing with supervised day contact only and moving to three nights per fortnight from the conclusion of Term 3 in 2021;
· that the child spends time with the [father] during the school holidays commencing from the conclusion of Term 3 2021 for three single week periods over Christmas and progressing to half the school holidays from the conclusion of Term 1 2023 onwards;
…
On the other hand, the father proposed that his time with the child commence with day only supervised contact, which then would ultimately progress to six nights per fortnight when the child became five years old.
The orders that were made by the trial judge fell between the parties’ proposals. They progressed more quickly than the mother wished and provided ultimately that the child spend five nights a fortnight with the father and not three. Significantly, the orders providing for unsupervised time were premised on the father completing an anger management course.
Senior counsel for the mother accepted, as she must, that the trial judge was not bound to make one or the other of the sets of orders proposed by the parties and that his Honour was free to formulate his own orders. It was further accepted that as the orders that were made fell between those proposed by the parties, there was no lack of procedural fairness (U v U (2002) 211 CLR 238 at [30]).
The trial judge’s reasons were comprehensive. His conclusions on this issue were:
234.Clearly it would be in [the child’s] best interests to have a meaningful relationship with her father. The [mother] does not disagree with this. Dr [DD] made it clear that [the child] is ready, having reached and probably exceeded her age development milestones, to progress quickly in terms of her time spent with her father. Dr [DD] said that the child is ready developmentally for the [father] to assume a greater role in her life including overnight time and that it is important for her proper development that this occurs. Dr [DD] said that this is a matter where substantial time with her father of up to five evenings per fortnight, one half of school holidays and sharing special occasions would be appropriate for [the child]. But she said that this would need to be introduced gradually, initially with an extension of time during the day only and then introducing overnight time in graduated steps. Dr [DD] said that three months was often “a very appropriate time” for a progression. But this recommendation was made without a full appreciation of the [father’s] poor impulse control.
235.The [mother] is only too aware of the [father’s] vulnerability to becoming verbally abusive and even engaging in physical violence. As I have said, she described herself as “over-protective”. Senior counsel for the [mother] submitted that the [mother], having been subjected to such behaviour, has a reason for being “over-protective”. I accept that there is some substance in this.
236.The difficulty, in my view, is that the [father] has a vulnerability to poor impulse control which has, from time to time, been manifested in the behaviours referred to above. As indicated above, if such behaviour was to occur in the presence or hearing of [the child] this could be emotionally and/or psychologically harmful.
237.To the [father’s] credit, there are some signs that he has recognised his vulnerability in this regard. Firstly, he pleaded guilty to having assaulted Ms [W], albeit based on facts which would not have amounted to an admission of physical violence against her. Secondly, his counsel informed this Court that he had every intention of undertaking an anger management course.
238.To some extent these matters mitigate the risk for [the child]. But, in my view, some risk remains. And in any event, the [mother] remains most anxious about the prospect of [the child] spending time away from her in the care of the [father]. I noticed in court particularly when the suggestion was made to introduce the child to overnight time with her father that this placed enormous stress on the [mother] which was obvious from her demeanour.
239.As [counsel for the mother] submitted on behalf of the [mother], what is in the best interests of [the child] also involves what her mother will be able to manage in terms of her anxiety. I accept this and note that it would be in [the child’s] best interests for her mother, particularly as her primary parent, to be functioning as the best parent she can be. Dr [DD] said that absence of [the child] from her and being in the [father’s] care would almost certainly impose stress on the [mother] and increase her anxiety. Dr [DD] said she would be well advised to seek assistance from an appropriately qualified professional to manage her concerns and anxiety.
240.In my view, it would be to [the child’s] benefit to provide an opportunity for her to further develop a meaningful relationship with the [father]. But such opportunity must be provided in circumstances which recognise that there is some risk to [the child] in her father’s unsupervised care which must be managed appropriately. I accept that the key to such management is to proceed with caution.
241.It would not be in [the child’s] interests to continue to require that her time spent with the [father] be supervised. There is an artificiality to this from both the perspective of the [father] and that of the child. In any event, the [mother] acknowledged that she might feel more comfortable with unsupervised time when [the child] reached school age when she would be more able to relate her experiences of spending time with her father.
242.Removal of the requirement for supervision would have a number of consequences. Firstly, the [mother] would no longer have the assurance of an adult being present during time spent between [the child] and the [father]. This would be likely to impose stress on the [mother]. Secondly, in the event that the [father] was to lose control and succumb to abusive behaviour in front of the child there would be no adult present to assist the child. On the other hand, it would remove the artificiality and other negative aspects referred to above.
243.In order to endeavour to strike an appropriate balance, that is not to deny [the child] an opportunity to develop a meaningful relationship with her father by permitting them the freedom of time spent together unfettered by supervision, yet also endeavouring not to cause too much stress to the [mother] and limiting the risk to the child, I propose that unsupervised time spent commence during daytime only for a period. Then the child would be introduced to limited overnight time which would gradually increase, ultimately arriving over the next year and a half or so to the substantial and significant time recommended by Dr [DD]. It is hoped that a gradual introduction of overnight time and not too rapid increase in the amount of time spent between [the child] and her father will enable time for the [mother] to become increasingly confident that [the child] is not at risk and that the arrangements are working in the child’s interests.
Dr DD is a psychologist who provided a single expert family report in this matter. There was no suggestion that any of the findings referred to in these conclusions had been erroneously made.
These paragraphs clearly illuminate why his Honour made the orders that he did and his Honour’s reasons are therefore adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). The reasoning is clearly apparent.
The mother then submitted that whilst the reasons might deal with the time and manner in which the spend time arrangement was to be introduced, they did not deal with the end point – that is to say, they did not explain why, at the end of the regime, the child would be spending five nights a fortnight with the father and not three nights. In particular, the mother focussed upon the findings as to her anxiety, as quoted above at [239], and asserted that the orders for five days a fortnight did not take her anxiety into account and were made solely in the hope that something would occur that would make the spend time arrangement desirable to the mother.
As is clear from his Honour’s reasons, the trial judge was taking into account a number of competing factors. His Honour was concerned that if the father’s violent behaviour occurred in the presence of the child, it could be emotionally or psychologically harmful for the child. His Honour also took into account the mother’s anxiety as to the child freely spending time with the father, which would adversely affect the mother’s parenting. Nonetheless, his Honour was concerned to try and put in place a set of orders that would promote the child having a meaningful relationship with both parents. Not only was the expert evidence to that effect but the orders proposed by both parties accepted that to be so.
Dr DD had recommended five nights a fortnight as the appropriate end point. Although the trial judge did not accept her recommendations as to the introduction of time, this aspect of Dr DD’s opinion clearly was adopted (at [243]). When that is coupled with the trial judge’s finding of the benefit of a meaningful relationship between the child and her father, the order for five nights a fortnight is readily explained.
Finally, the trial judge did not express merely a hope that something would occur to make the spend time arrangement successful. To the contrary, his Honour found that the “gradual introduction of overnight time and not too rapid increase in the amount of time spent between [the child] and her father will enable the [mother] to become increasingly confident that [the child] is not at risk and that the arrangements are working” (at [243]). Not only are his Honour’s conclusions pellucid, they are soundly based on the evidence and his reasons.
This ground does not succeed.
Did the trial judge, in making orders that provided ultimately for the child to spend five nights per fortnight with the father, fail to take into account the capacity of the parties to implement such an arrangement having regard to ss 65DAA(5)(b) and (c)? (Ground 2)
Section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to consider a child spending equal time or substantial and significant time with each parent, where a parenting order provides that the child’s parents are to have equal shared parental responsibility for the child. In undertaking that consideration, the Court must consider whether spending equal time or substantial and significant time with each of the parents would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c) of the Act) and whether that time is reasonably practicable (ss 65DAA(1)(b) and (2)(d) of the Act).
Section 65DAA(5) of the Act requires the Court, in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents, to have regard to the matters set out in that section. Subsections 65DAA(5)(b) and (c) respectively require the Court to take into account:
…
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.
The mother’s submission is that the trial judge did not take these matters into account and that if indeed he did, it was not plain what conclusion was formed. It was put by the mother that it was not enough to say that each of the parties’ proposals met the requirements, but that it was necessary for the trial judge to address himself to the exact order to be made and explain why he thought that the parties had the capacity to implement it.
It is relevant first to record that the trial judge expressly referred to s 65DAA of the Act at [116] in highlighting the approach to be taken in parenting cases. His Honour obviously had its terms well in mind.
The trial judge was also well aware of the parties’ difficulty with communication. For example, his Honour said:
136.Dr [DD] said that in the context of high conflict as is the case between these parents it is imperative that [the child] is not inappropriately empowered. She said that placing such weight on a young child’s views in the absence of a collaborative parenting relationship can become highly problematic for a child such as [the child] and places her in the position of becoming the conduit between her parents. She said that the parties have been warned about the dangers of using the nannies in this regard but, sadly, unless they were to address their communication impasse they pass the staff onto [the child] to adopt this role.
…
184.Dr [DD] said that as a result of the dispute, unfortunately, both parents have adopted a defensive position in their parenting relationship where they have become suspicious of the other and their intentions in respect of parental responsibility and communication. She said that the parents have considerable work to do in order to jointly assume the responsibilities of parenthood. She said that they are currently caught in an intense power struggle and have adopted a competitive rather than a collaborative stance in their parenting relationship which is hardly child-focused.
His Honour directly addressed the issue surrounding communication in the following passages:
209.The communication between the parents since separation has been problematical and they have only been able to discuss [the child’s] care in the presence of a third party.
210.Dr [DD] said that on the day of the interview with her the [mother] still sought not to come into contact with the [father]. She said that when the parties came into contact in the corridor neither was able to acknowledge the other.
211.Dr [DD] said that the reports of Ms [Q] referred to a communication pattern where the [father] perceived the [mother] to be critical and rigid which triggered anger and hurt in him. She said that such a pattern continued to pervade their communication. She said that unfortunately neither of the parents accepts responsibility for the role they are playing in their fraught communication dynamics and each projects responsibility onto the other for their incapacity to be able to discuss matters relating to [the child]. She said that this stands in the way of them cooperating and that court orders, in themselves, will not address that shortcoming. She said that it may well be that until their communication improves the parents need to take a parallel parenting approach where each makes decisions for [the child] while the child is in their care. She said that it is possible that the current positioning of the parents is an attempt to attain ascendency in their dispute and to be seen favourably in the eyes of the Court. She said that they might want to consider reconnecting with Mr [HH] to revisit the long term implications on [the child] of maintaining their conflicted positions and rage. She expressed the hope that some of the conflict and poor communication might abate once the litigation has concluded.
212.Dr [DD] said that it was a matter of concern that there is such a low level of trust between the parents in spite of the couple’s therapy and the family therapy which they have attended together. She said that the adult issues still seem to be strongly contaminating their capacity to focus on [the child] and that this does not augur well for their future co-parenting capacity. She said that it also raises questions about whether their parenting dispute has the potential to become intractable with [the child] at the centre of it. She said that Court orders in themselves will not assist the parties if their level of mistrust continues to flow in such a strong way.
Nonetheless, those findings must be seen in the light of the parties’ joint application that there be an order for equal shared parental responsibility. They obviously considered, notwithstanding their communication difficulties, that it was not reasonably impracticable for them to communicate with each other in order to implement that responsibility. Each party further proposed a regime of graduated time. Logic dictates that if each of the proposals by the parties meet the requirements of s 65DAA(2) of the Act, then an order that falls between them must also do so.
Section 65DAA of the Act is not a mantra to be repeated regardless of the nature of the issues before the Court or to be the subject of great exposition when it is not a live issue (SCVG & KLD (2014) FLC 93-582 at [81]). In the context of these proceedings, we do not think that it was necessary for his Honour to go further than he did.
In any event, the requirement imposed by s 65DAA(5) of the Act is for the Court to have regard to the matters set out in the subsections. As appears from the passages quoted above (especially [234] and [243]), his Honour did do so.
There is no merit in this ground.
Did the trial judge, having made a finding that Dr DD was not fully appreciative of “the [father’s] poor impulse control”, err in adopting her recommendations as to time, without modification, having regard to the evidence and his findings? (Ground 3)
Dr DD made the following recommendations in her report:
113.It is recommended that [the child’s] time with her father be progressively extended to longer periods during the day so that in the next few months she is spending two full days per week preferably one day during the week and one day on the weekend with [the father]. It is recommended that the need for supervision be lifted.
114.It is recommended that by the time [the child] is four years old, she commence spending time overnight with her father. This will need to be gradually increased to the point where she spends substantial time i.e. five evenings per fortnight. This would ideally take the form of four consecutive evenings one week and one evening in the other week. It is also recommended that by the time [the child] attends school, special occasions and school holidays be gradually shared between the parties. This would also include [the child] spending time with her father during the times when [the mother] travels overseas.
(Annexure “B” to the Affidavit of Dr DD filed 6 March 2017 p.61)
Whilst it can be seen that Dr DD recommended that the end point be five nights per fortnight, it is clear that her proposed interim regime of time provided for longer periods of time commencing earlier, than the orders proposed by the trial judge did, and she saw no need for any supervision.
It follows that the premise set out in this ground of appeal is not established because the orders that were made did not mirror Dr DD’s recommendations, unless the ground is taken to be limited to the order of five days per fortnight.
Dr DD’s recommendations were based on her observations as to family violence. They differed from the trial judge’s, as the following passages from his Honour’s reasons make clear:
199.The view which I have about Dr [DD’s] opinion concerning the [mother’s] allegations about violence is that Dr [DD] considers that there might have been a single instance involving some physical violence, that some comfort could be taken from the fact that the [mother] continued to cohabit with the [father] after the incident and that overall the [father] did not present as any risk to [the child].
200.The difficulty with this position is that, in my view, whatever doubts there might have been about the veracity of the [mother’s] allegations about violence and the [father’s] propensity for violence were dispelled by subsequent events. As indicated above, in April 2017, the [father’s] partner, Ms [W], made a complaint to the police about the [father’s] behaviour which was followed by the issue of an AVO for her protection against him. As also indicated above, the [father] pleaded guilty to having assaulted Ms [W] although no conviction was recorded.
…
203.In my view, what this evidence does is to make it more probable than not that the [father] has tended to minimise the extent of his aggressive behaviour towards the [mother]. In my view the new evidence makes it more likely than not that there is substance to the [mother’s] allegations about violence perpetrated on her by the [father]. In my view, this also brings into question the somewhat optimistic view which Dr [DD] appeared to hold which is that whatever violence there might have been during the parties’ cohabitation had been limited, that on all appearances things were improving in that regard and that there had been no repetition of violence…
The trial judge considered, for the reasons set out at [234], which we have already quoted above, that Dr DD’s recommendations as to the progression of time were “made without a full appreciation of the [father’s] poor impulse control”.
It is very well established that a trial judge is entitled to accept some parts of a witnesses’ evidence and not accept 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).
The reasons as to why some of Dr DD’s evidence was accepted and some was not, are clear and have already been canvassed. No error has been established.
Did the trial judge err in failing to make orders that contemplated a potential failure on the father’s part to complete a 12 week anger management course in a timely fashion or at all? (Ground 4)
This ground is said to be based upon the evidence which the mother seeks to adduce by the Application in an Appeal filed 3 May 2019. It is therefore convenient to deal with that application at this stage.
The mother’s proposed evidence deals with essentially two matters. The first is that the mother contends that the father had not in fact completed the anger management course required by the orders, despite the father’s assertions to the contrary. That issue is traversed at length in the mother’s affidavit filed 3 May 2019 and in the father’s affidavit in response filed 20 May 2019.
The mother deposed that the dispute as to whether the father had in fact completed the necessary course, and whether the precondition for unsupervised time had been met, led to an unpleasant scene involving the child, the child’s nanny and the father at a changeover, which ultimately led to the police being involved.
The evidence also establishes that the matter was relisted before the trial judge on 7 March 2019 where the issue of compliance was agitated. His Honour came to the view that the father had not, in fact, completed a course of the kind intended by the orders and stayed the orders involving unsupervised time pending the outcome of the appeal.
The father’s evidence is that on 1 May 2019 he completed Life Supports’ 12 week anger management course, which was the course specified in the trial judge’s orders.
Returning then to Ground 4, the mother made the following submissions in her Summary of Argument filed 17 April 2019:
23.Order (5.1) as drafted was well intentioned but practically flawed. The expression in the orders was “completes an anger management course such as Life Supports’ 12 week course or a similar course …”
24.Had the father completed the Life Supports’ 12 week course then this issue may not arise. He has not …
Those submissions would appear to have been overtaken by the events recorded above.
In oral submissions, counsel for the mother focussed upon the following comment made in the father’s affidavit in response to the mother’s application proposing to adduce further evidence in the appeal, where he said:
…I have become aware of how my behaviour could be misinterpreted by other people as aggressive and/or intimidating and have taken steps to modify my behaviour and to implement the techniques that I have been taught by the various psychologist. The 12 week Life Supports course I have completed as further help me understand how my behaviour could be misinterpreted by other people. I have undertaken to modify my conduct to avoid my behaviour being misinterpreted as anger.
(Father’s affidavit filed 20 May 2019, paragraph 76) (As per original)
It was submitted by the mother that if the trial judge had known that the father’s response to an anger management course was not to seek to modify his behaviour to avoid anger, but to avoid it being misinterpreted by others, the orders would therefore have been different.
It is useful, at this stage, to repeat the findings of the trial judge about the need for an anger management course. His Honour said:
237.To the [father’s] credit, there are some signs that he has recognised his vulnerability in this regard. Firstly, he pleaded guilty to having assaulted Ms [W], albeit based on facts which would not have amounted to an admission of physical violence against her. Secondly, his counsel informed this Court that he had every intention of undertaking an anger management course.
238.To some extent these matters mitigate the risk for [the child]. But, in my view, some risk remains …
This led to the trial judge delaying the father’s unsupervised time with the child until the father completed the anger management course.
The mother’s submissions rely on only a part of the father’s proposed evidence. As stated above, the father said that he had “taken steps to modify [his] behaviour and to implement the techniques that [he has] been taught by the various psychologist[s]” (Father’s affidavit filed 20 May 2019, paragraph 76).
This statement, whether taken in part or in whole, does not demonstrate error on behalf of the trial judge because the evidence does refer to a change in the father’s behaviour.
The order that was made suspending unsupervised time followed the order proposed by the mother that the father complete an anger management course. She now submits that had the above evidence been before the trial judge, a different order would have been made, although she does not say what that order should have been.
It is not at all obvious what that different order would be, particularly in the light of the evidence that the correct anger management course has now been completed and the unchallenged finding that continual supervision was not in the child’s best interests.
We are inclined to accept the further evidence of both the mother and the father insofar as it relates to the completion of the anger management course on the basis that it is intended to demonstrate error (CDJ & VAJ (1998) 197 CLR 172 (“CDJ & VAJ”) at [109]). However, for the reasons given, we are not satisfied that it does in fact demonstrate error in his Honour’s reasons.
The balance of the proposed evidence goes to the difficulties that the parties have had in dealing with each other since the orders were made and is not relevant to any ground of appeal (CDJ & VAJ at [111]). It will not be received.
It follows that this ground of appeal fails.
Did the trial judge fail to consider the practical effect of Order 18 in circumstances where the mother had been found to have been subjected to family violence by the father? (Ground 6)
This ground concerns the following order made by the trial judge:
Unavailability of the [mother]
(18)From the conclusion of Term 1 in 2021 and subject to the completion of the anger management course as specified in order 5.1, in the event that the [mother] is unable to care for the child for a period of at least twenty-four hours the [father] is to be given first opportunity to care for the child during the time the [mother] is unable to do so and the [mother] shall notify the [father] by text message or email as soon as she becomes aware of her unavailability to care for the child.
It was submitted by the mother that this order was erroneously made because the parties do not have a functional working relationship and therefore the terms of the order invite further dispute. It was also submitted that the phrase “unable to care for the child” was uncertain and that the child had accompanied the mother on some trips. The submissions did not address the issue of family violence as raised in the ground.
His Honour’s reasons for making the order were:
246.Dr [DD] said that it would also be envisaged that the [father] could eventually become [the child’s] carer during block periods when the [mother] was overseas travelling for work. Dr [DD] expressed some puzzlement that the [father] had assumed such a role to a significant degree in the first year of [the child’s] life when the parties were cohabiting but has not done so since separation.
247.I propose to make an order to facilitate this but not to commence until early 2021 when the child will be spending substantial and significant time with her father as well as a week during school holidays.
No challenge was made to any aspect of that reasoning.
Order 18 also needs to be read in the light of Orders 19 to 23 which set out the circumstances in which the child may be taken overseas for holidays. No provision is made for the child to be taken overseas by the mother when she travels for work and the child would therefore remain in Australia with the mother unable to care for her. The meaning of the orders thus seems tolerably clear to us and the fact that the parties may, or are even likely, to have disagreements as to their application, in particular circumstances, does not establish that the order was erroneously made.
The trial judge was alive to the communication difficulties between the parties. The proposed further evidence as to the parties’ difficulties since the orders were made does not demonstrate that the finding was erroneous but simply that, sadly, nothing has changed. It is worth repeating that the trial judge found that it was in the child’s best interests for her to have a meaningful relationship with both of her parents, which was to be supported by her spending substantial and significant time with the father notwithstanding the parties’ difficulties with communication. It bears recalling that each party proposed orders providing for equal shared parental responsibility and for the child to spend substantial and significant time with each parent, thus accepting that they could communicate adequately, at least to that extent.
This ground does not succeed.
Conclusion
Accordingly, the appeal will be dismissed.
Costs
As requested by the parties, orders will be made for written submissions as to costs and therefore costs will be determined on that basis.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Austin & Tree JJ) delivered on 24 October 2019.
Associate:
Date: 24 October 2019
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