SCRANTON & SCRANTON - [2012] FamCAFC 54

FAMILY COURT OF AUSTRALIA

SCRANTON & SCRANTON

[2012] FamCAFC 54

FAMILY LAW – APPEAL – CHILDREN – whether the Federal Magistrate erred in findings of fact, in procedure and evidence, in law and in form – no error found – appeal dismissed.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Scranton

RESPONDENT:

Mrs Scranton

INDEPENDENT CHILDREN’S LAWYER:

Ms Grew

FILE NUMBER:

PAC

3475

2009

APPEAL NUMBER:

154

2010

DATE DELIVERED:

5 April 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Ainslie-Wallace & Loughnan JJ

HEARING DATE:

20 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 October 2010

LOWER COURT MNC:

[2010] FMCAfam 1160

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Shepherds Family Law Specialists

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg Pty Ltd

Orders

The appeal be dismissed.
The father pay the costs of the mother of and incidental to the appeal, with the costs to be assessed in default of agreement.
The application by the Independent Children’s Lawyer for costs be refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scranton & Scranton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 154 of 2010
File Number: PAC 3475 of 2009

Mr Scranton

Appellant

And

Mrs Scranton

Respondent

REASONS FOR JUDGMENT

The appellant, Mr Scranton (“the father”) appeals against the parenting orders made by Henderson FM on 26 October 2010 in relation to the two children of the marriage between him and the respondent, Mrs Scranton (“the mother”), namely, X (born in 2000) and Y (born in 2003) (“the children”).
The Federal Magistrate made 17 orders, including orders which provided for the mother to have sole parental responsibility for the children; for them to live with her; and after an introductory period for them to spend alternate weekends and half school holidays with the father. Other matters which were (or were not) the subject of her Honour’s orders will be referred to later in these reasons.
At the commencement of the hearing of the appeal, we permitted the father to rely on a 160 page bound document titled “Full-Length Argument of Appellant” (“the Written Argument”). We also permitted the father to amend the grounds of appeal contained in his Second Amended Notice of Appeal filed 25 August 2011 to include the corrections to Grounds 5 and 14 contained in Part 1 (page 3) of the Written Argument.
Although the Written Argument had not been served on the other parties to the appeal, being the mother and the Independent Children’s Lawyer (both of whom opposed the appeal), both their counsel consented to our accepting the document on the basis that should we require further submission on any point raised in the document that was not the subject of oral argument, we would seek written submissions from all parties. Given that we had accepted the document, the father’s oral argument was directed to grounds that he particularly wished to emphasise. The respondents were able to make oral argument on those points.

Background

It is necessary to consider some of the background to this matter to give context to the appeal.
The parties lived in the United States of America and were married there in 1999. In 2000 they arrived in Australia where they have since lived.
In 2000, the child, X was born.
In 2003, the child, Y was born.
In November 2007, the parties physically separated when the mother moved with the children from the former matrimonial home. Yet, the mother did not regard the relationship as over until July 2008 when she sent the father a letter declaring “formal separation”. She filed for divorce in July 2009 which was granted in September 2009 and which became absolute in October 2009.
The parties initially agreed as to the post-separation parenting of the children. However, in October 2009, subsequent to the father retaining the children overnight after the mother refused him entry to her home at changeover, the mother commenced proceedings in the Federal Magistrates Court of Australia seeking final and interim parenting orders.
On 2 November 2009, the matter was first brought before the Federal Magistrate. No order was made for the children to spend time with the father.
On 27 November 2009, interim orders were made by the Federal Magistrate which provided, inter alia and in summary, for the children to spend no less than two hours of supervised time each fortnight with the father at a contact centre.
On 12 April 2010, interim orders were made by the Federal Magistrate, inter alia and in summary, increasing the time spent by the children with the father to unsupervised time each Sunday.
On 2 July 2010, the interim orders of 12 April 2010 were suspended by the Federal Magistrate.
Between 26 and 29 July 2010, the final hearing of the matter took place.
On 26 October 2010, the Federal Magistrate delivered her reasons for judgment and made the impugned final orders.
On 25 November 2010, the father filed his Notice of Appeal against the orders of 26 October 2010.

The orders and reasons for judgment of 26 October 2010

The Federal Magistrate began her judgment by referring to earlier proceedings and orders (which we have summarised above). She also explained the applications which were before her. Very early in her reasons [9] she explained that the issues at trial had been:
a)The impact of the father’s personality and agreed [personality disorder] upon his behaviour and thus his relationship and functioning with the children;
b)The amount or, as Dr [W] stated it, the dosage of time the children could cope with in their father’s unsupervised and sole care;
c)The impact upon the mother’s parenting capacity of an order for unsupervised time with the children and their father;
d)The risks for the children in spending supervised, unsupervised, day time only, night time and day time, and lengthy periods of time with their father;
e)The school the children should attend in 2011 and continuing; and
f)The issue of parental responsibility and the rebuttal of the presumption of equal shared parental responsibility.
As her Honour observed at [54], there was little factual dispute between the parties. Rather “[t]he differences arose from their respective reactions to events, understanding of the consequences of each other’s behaviour and the needs of their children”.
There is no issue the father has a personality disorder. The dispute before the Federal Magistrate related to the effects of that disorder on his daily functioning and its impact on the mother and children. As her Honour recorded:
60.The father freely admitted in the witness box that he had suffered from [a personality disorder] and that it has, at times, significantly impaired his functioning, making him emotionally and physical unavailable to those around him in that he becomes completely obsessed with projects.
Her Honour observed at [64] that the father agreed that he set himself particular projects that he had to finish as his utmost priority and at [61] that the mother had real concerns that, as a result of the father’s obsession with projects, he abandoned financial responsibility for the family and became emotionally unavailable to her and the children.
Her Honour recorded at [63] that particularly two projects (restructuring his church’s finances and creating a security system for his personal computer) occupied much of the father’s attention at the end of the marriage.
Her Honour had the advantage of two expert reports prepared by a psychiatrist, Dr W, and also evidence given by Dr K, a psychiatrist whom the father consulted.
Her Honour found that the children benefit from spending time with their father and they enjoy activities with him. She said:
217. Dr [W’s] evidence at an earlier hearing was that the boys can deal with their father’s unusual behaviour more easily than adults as he is their father and for them that is how he is. The father has spent more time with them one on one in the last few years than he did in their early years. I accept the father enjoys his time with the boys as they do with him. The father is able to care for them for short periods day to day and longer periods for holidays, particularly if the days are free enabling the father to have time to engage in his important educative, spiritual and physical activities with them.
218.Dr [W’s] evidence was that it may be in the teenage years that some friction will develop between the boys and their father and that [X] is more susceptible to being overborne by his father than is [Y]. Thus it is important not to overexpose the boys to their father’s eccentric and unusual behaviour but enable them to deal with it and benefit from the many wonderful activities and knowledge that their father is capable of sharing with them.
…
220.The two major issues for me is the dosage of time the children can tolerate with their father and sole parental responsibility.
Her Honour found, based on the expert evidence and her own assessment of the evidence, that because of the father’s obsessive and overwhelming approach to debate and discussion, shared parental responsibility would be impossible. She referred to the evidence of Dr W, saying:
228. …He saw little ability in the father to exercise sole responsibility because of his need to gather all the relevant information, sort and catalogue it which would make it impossible for him to make a timely decision or a decision from the perspective of the child’s needs…
Later having canvassed the matters in s 60CC(2), (3) & (4) of the Family Law Act 1975 (Cth) (“the Act”), the Federal Magistrate determined that the mother should have sole parental responsibility for the children. In relation to her decision not to make an order for equal shared parental responsibility, her Honour observed at [289]:
The father’s lack of capacity to make child focussed decisions arising out of his impaired functioning, inability to take on board any different point of view from the mother to his own, his desiccating of any debate by overburdening with information, his lack of respect in dealing with the mother’s point of view, and the significant negative impact on the mother’s parenting capacity that the implementation on a day to day basis of such an order would have.
The Federal Magistrate then turned to a consideration of the time that the children are to spend with their father. She observed that his relationship with the children was “embryonic”, a reference to her findings that before the separation, the father spent little time with the children, but had, since the separation, spent much more time with them. She said:
235.Dr [W] did not see that the boys would come to harm in their father’s care but that their life may be overly organised, they may find his approach stifling as they age, particularly [Y], and the father may have them to grow up too fast [sic].
Referring to the father’s proposal which was essentially for the boys to spend equal time with each parent, her Honour said:
251.The orders posed by the father for effectively an equal time arrangement in 12 months would be a significant change to the children’s present and past care arrangements. In his second report Dr [W] did not support equal time but an arrangement of four nights a fortnight. In his oral evidence at the hearing he reduced this to one overnight period a fortnight and said the question for the Court was the dosage of time the children could spend with their father without being exposed and harmed by his eccentric behaviour.
Her Honour found that the father’s proposal was not in the children’s best interests because he could not competently care for them during the school week on a regular basis. She said:
253.…The father’s needs and priorities are still paramount for him and that is inconsistent with getting the boys to and from school, completing homework, washing, ironing, cooking, preparing lunches and the like.
254. Dr [W] said, at page 33 of his second report, that the father has a capacity to change but he needed professional help to do this. I would add the father must want to change if any intervention is to assist him.
Her Honour rejected the mother’s proposal that the children have one day per week with their father and found that it was important that they have overnight time with him.
The father had sought an order that allowed him to take the boys overseas for an extended period at the conclusion of the hearing. Her Honour rejected that and said that his persistence in the application reflected poorly on his attitude to parenting and the children:
271. …I found at the Interim Hearing that the father’s persistence in that application demonstrated his focus was still on his needs and wants and not what is best for the boys.
272. I found that the father had no concept of what such a lengthy separation from the mother would do to [Y]’s emotional well being, that he would miss his mother and fret for her…I found the father had no understanding of the negative effect on the children in being removed from school for the whole of third term.
When further considering the time to be spent between the father and the children her Honour said:
292. In relation to the issue of time I have formed the view on all the evidence that I will make orders progressing the father’s time to one weekend a fortnight being a Saturday morning to Sunday afternoon each alternate weekend.
293. This is the dosage of time Dr [W] said the children could cope with in the father’s care. It is similar to the time he was spending prior to his breakdown and deteriorating functioning in July 2009 and it is a length of time the father can cope with in placing the children’s needs as a priority over his needs.
294. Holiday time is different and is not regular time and thus can be of a greater length than regular term time. I will make the school holiday order proposed by the Independent Children's Lawyer and the overseas travel orders.
Her Honour explained that as the children had extended family in the United States of America, it was appropriate that they be permitted to see them.
As part of his application, the father had sought orders that he spend time with the children on various days of religious and cultural significance to him and to them as he saw it, in total 30 days.
Her Honour did not make orders to give effect to that application.
It is in this context that we turn to consider the matters raised on the appeal.

The Appeal

By his Second Amended Notice of Appeal, the father raised 55 grounds of challenge to the judgment. As we earlier mentioned, at the commencement of the appeal hearing, he was given leave to amend that Notice of Appeal further in terms as set out on page 3 of his Written Argument in a Part entitled “Minor Corrections to Grounds and Orders Sought”. We will take the corrections into account when considering the grounds of appeal in question.
We will not set out the 55 grounds of appeal within these reasons, but will annex to them a copy of the grounds contained in the Second Amended Notice of Appeal, together with a copy of page 3 of the Written Argument containing the corrections to two grounds.
As we had accepted for consideration the father’s 160 page Written Argument, he was invited to make brief oral argument on the grounds that he said were particularly important to the determination of the appeal. That distillation of the grounds was helpful. Of course we did not consider that by adopting that approach, the father abandoned any of the other asserted grounds, but it gave us a perspective into his arguments.
The father’s Written Argument and his Second Amended Notice of Appeal group the grounds as follows:
· Errors in Findings of Fact (18 grounds)
· Errors in Procedure and evidence (14 grounds)
·Errors in Law (22 grounds)
·Error in Form (1 ground)
We will consider the grounds in the same groups for convenience, using for the most part the references in the Written Argument, which expand on the grounds set out in the Second Amended Notice of Appeal. In our consideration of the grounds we will focus particularly on those matters on which the father placed particular emphasis in his oral submissions to us.

The principles which govern appeals against discretionary judgments

However, before we consider the complaints raised by the father, we will set out the principles which govern, and indeed limit, appellate interference with a judgment such as the present, which is known as a discretionary judgment, as those principles emerge from decisions of the High Court of Australia:
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. (House v The King (1936) 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ).
[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. (Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, 627 per Kitto J).
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…(Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J).
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial. (AMS v AIF (1999) 199 CLR 160, 211 per Kirby J).

Errors in findings of fact

Ground 1 of the Second Amended Notice of Appeal asserts that her Honour’s reasons contain errors of fact in relation to uncontested evidence. Ground 2 asserts that there are errors of fact “that are contrary to the evidence and prejudicial against the father”.
We have considered the asserted material errors to which these two grounds relate. It has to be said that father has undertaken an extensive, somewhat clerical approach to the reasons for judgment and appears to have taken issue with and raised what appeared to him to be every error of expression or fact. We do not criticise him for so doing; however the appeal process is not one in which each sentence is parsed and each word scrutinised for error. (See in this regard the observations of Kirby J in AMS v AIF, set out above).
We do not propose to set out each asserted error. We will by illustration of our view, refer to those which have the particular focus of the father’s oral submissions.

Errors of fact regarding uncontested evidence (Appeal Ground 1)

In relation to the errors regarding uncontested facts, the father in both the Written Argument and in argument before us, conceded that of the asserted errors of fact some are “quite minor and inconsequential” (Written Argument page 4 paragraph 1(b)). He identified in the document the errors that he regarded as being consequential. The material errors of fact regarding uncontested evidence were said to be found in Part 3 of the Written Argument: items 3, 16, 20, 22, 23, 27-31, 34, 36-42, 44, 46 and 48. It is on the complaints contained in these items, particularly where they were the focus of the father’s oral submissions that we will focus.
The references which follow are for the most part to the father’s Written Argument which expanded on the grounds set out in the Second Amended Notice of Appeal.
In item 3 of Part 3 of the Written Argument the father refers to an error said to arise in paragraph 13(a) of the reasons in which her Honour refers to the mother’s proposed orders saying:
The mother additionally sought an order that before the father progress to overnight or holiday time with the children, the father complete a parenting course as recommended by the Independent Children's Lawyer and provide a comprehensive psychiatric report confirming:
a)He had insight and understanding of his psychotic condition;
b)He had completed cognitive behaviour therapy and other treatment; and
c)He would not expose the children to incidents, behaviour or conduct of bizarre nature.
The mother’s application referred not to the father’s “psychotic condition” but to his “psychiatric condition”.
Clearly the father is correct in noting that this is an error. However, her Honour did not make an order in those terms and the error is not relevant to the determination.
In some instances, the father claims that the asserted error led to an “interpretation that is more negative about the father”. An example of this is found in item 16 of Part 3 of the Written Argument which refers to paragraph 78 of the reasons for judgment. In the Written Argument on this point the father noted that the psychiatric report by Dr W (at bottom of page 10) says “particularly children” but the quotation in the Reasons for Judgment says “particularly his children”. According to the father, this alteration leads to an interpretation that is more negative about the father. We do not agree that this is necessarily so.
In his oral argument, the father took us particularly to item 31 in Part 3 of the Written Argument which refers to her Honour’s account of an event which took place on the father’s return with the boys from a holiday in New Zealand in [167] of her reasons.
Her Honour had noted that the father returned the boys to the mother’s home and asked to come inside which was refused by the mother who said that she did not want him to enter. Her Honour further noted that it had been up to that time the father’s practice to request to be admitted to the mother’s house when he returned the children to her, saying:
166. The father says he was shocked the mother had gone back on her agreement and he was now concerned what this meant for him in seeing the boys in the future.
167. The father would not allow [Y] to go inside to go to the toilet. He would not let the boys touch or speak to their mother. He ordered them to return to the car where they had to wait. [Y] had to go to the toilet at a neighbours [sic] who intervened to allow this to occur. The police were called and as no orders were in place they took no action and the father took the boys home.
168. The father took them to school the next day and their mother collected them early so these events would not occur again and to enable she and the boys to be re-united. These proceedings then ensued.
The father said that he took no issue with her Honour’s recounting of this incident other than the assertion that he did not permit the boys to hug their mother and said that in fact, they had hugged her before the issue of his entry to the house was raised. Nothing, in our view, can turn on a complaint such as this.
A further example of this type of asserted error contained in item 36 of Part 3 concerns an incident in which the parties consulted a priest, Father J, before their separation.
Her Honour referred to this incident in the following paragraphs of her reasons:
177.The issue of the father’s eccentric behaviour is a matter of concern for the mother. One example is his reaction to Father [J]. Father [J] is a priest in a Church the parents attended during the marriage. By late 2006 the mother was becoming extremely concerned by the father’s behaviour. In addition he was not listening to her that he needed to get help if their marriage was to continue. The mother sought to enlist others to assist her to explain to the father what her needs were as a wife and human being. In her desperation she attempted to involve his parents and Father [J] from their church to intercede as she they may make more progress than she had.
178.The father’s reaction to Father [J]’s comments and discussions with him were extreme. The father sets out clearly in his 2016 paragraph affidavit, commencing at paragraph 288, events at the meeting on 16 February 2007 with Father [J].
179.Father [J] spoke to the father with the mother present and reiterated that the mother had asked for father to leave the home. The father said that it would make no sense for him to leave the home as he needed to get a job as the mother had been urging him to leave his projects and get a job for some time, he needed to continue to use his computer and phone line and it would make no sense for him to move out as that would disrupt the things he had been working on and make it even harder for him to get a job. According to the father, the mother arose from her seat and started to cry. The mother’s concerns that the father was still focussed on what he needed to do, not what his family needed was laid bare.
The father submits that in fact, he cried in that meeting, not the mother and so her Honour’s conclusions based on this event were erroneous. Again, he raised no argument about the correctness of the balance of her Honour’s recounting of the episode.
During argument, the father said that this mistake painted him in a poor light as if he was being insensitive to the mother. He readily accepted that this was the mother’s assertion about this and other instances. However, he did not accept her Honour’s characterisation of him in the marriage, but we understood him to agree that it was an issue in the trial open for the Federal Magistrate’s determination.
A further error was asserted in item 40 of Part 3 arising from paragraph [198] of her Honour’s reasons in which she discussed the father’s proposals that the boys spend three months overseas with him as part of his desire to introduce them to the wider world. Her Honour determined that this proposal was indicative of an inability on the part of the father to distinguish his needs from those of the children. She said at [198]:
[Y] at six and a half is simply too young to be separated from his only functioning parent for such a lengthy period of time…
The father observed in Part 2 of his Written Argument (page 6) that:
…[a]t the time the Reasons for Judgment was written, [Y]’s age was seven years and seven months, not “six and a half.” Reducing [Y]’s age by a year is more favourable to the mother’s case against the international travel orders sought by the father.
Accepting this error for present purposes, the father conceded that had her Honour stated [Y]’s age as seven and a half, her conclusion would not be impeachable.
In his oral submissions, the father also pointed to [150] and [151] of her Honour’s judgment in which he observed an error of fact:
150.The mother gave evidence that prior to her filing and serving on the father the Divorce Application, she agreed to the boys attending a holiday with their father in New Zealand. Before they went to New Zealand, the mother acquiesced to the father’s need to have a ceremony to exchange the boys’ passports. The boys greeted her at the door and said “Dad says we can go out to dinner if you say it is ok”. The mother said she did not want to go out to dinner with the father but, as the boys were excited and they were going on a holiday, she agreed. When they went to the restaurant, the waiter asked the mother what she wanted to drink, the father answered “wine”. The mother said “water”. The father said “no, wine”. The waiter asked her again, she “water, thank you”, the father said “no no, she wants a glass of wine”.
151.The mother said she realised then she could not even order her own drink at a meal with the father. He was so controlling of her behaviour. That was when she determined she would proceed with the Divorce Application.
The father asserted that this was an error because at the time of this incident the divorce application had been served and been heard although the matter not finalised. Counsel for the mother conceded the error. However, we do not regard it as a material error.
The father argued in Part 2 of his Written Argument (page 6):
(w)In each of the above cases, her Honour’s statement reflects more negatively on the father than is justified by the facts.
(x)Certainly one or two minor errors of fact might not be seen to affect the outcome of a case materially. Even in a decision with a large number of factual errors, if they were more or less evenly divided, with some being more favourable to the father and some being more favourable to the mother, it might be reasonable to conclude that they had no effect on the outcome. However, as demonstrated above, the errors listed in Part 3: Errors of Fact Regarding Uncontested Evidence are almost uniformly prejudicial against the father (original emphasis).
(y)The large number of errors in this decision and their consistently negative slant against the father creates the impression that justice has not been done.
(z)Rather than following the evidence to a natural conclusion, her Honour has allowed the conclusion to dictate the characterisation of the evidence.
While we understand the father’s assertion that the factual errors lead him to feel less confident in the reasoning process, it is important to observe that while there were clear errors demonstrated, they do not go to the central issues in the matter nor do they individually nor collectively operate to impugn her Honour’s reasoning process.
Errors of fact do not inevitably lead to appellate interference. In

De Winter and De Winter
(1979) FLC 90-605 the High Court held that if a trial judge has made a mistake of fact, an appeal court will only interfere if the mistake is material to the decision.
We are not satisfied that the errors to which the father pointed in his oral argument and in his Written Argument were of such a nature that they give rise to appealable error.
The submission that the errors were “almost uniformly prejudicial against the father” is one of impression. Taken in context of the whole of the reasons, we do not find that these errors lead to the asserted conclusion.

Findings of fact which are inadequately supported by the evidence (Appeal Grounds 3-18)

These grounds were considered at paragraph 3 of Part 2 of the father’s Written Argument and following (pages 7 to 40). Again, we do not propose to set out the asserted errors in full, but will, again, refer to some of them to illustrate our conclusions about these grounds.
In his oral argument, the father took us to Ground 7 of the Second Amended Notice of Appeal, which related to her Honour’s findings about negotiations between the parents, and we were directed to [146]-[148] and [157]-[159] of her reasons. This argument was also contained in Part 2 of the Written Argument (at page 14).
Her Honour found:
146.There was an emphasis in the father’s evidence of the mother going back on “agreements” they had reached about schooling for the boys, passports, who would keep passports, time with the boys and the like. That “going back on agreements” as he saw it stressed the father. I formed the view that the father has no idea what the word “agreement” means.
147.What the father regards as agreement is a comprehensive detailed document prepared by him setting out chapter and verse what he believes should occur and that such a document when presented is the agreement. It is not. This is merely the father imposing by documentary evidence of a voluminous nature his will upon others and in particular the mother.
148.Acceptance by each party is at the core of an “agreement” not acquiescence under pressure or weight of material as happened to the mother again and again and as Mr [Scranton] tried to do with the Court in his eleven well written and comprehensive affidavits filed in these proceedings, the last of which was 2016 paragraphs in length.
Her Honour continued at [157]-[159]:
157.The father then sought to take the boys to Tonga, another holiday planned many years earlier. The mother was unhappy with Tonga. There was a “ceremony”, to use the father’s words, of handing over the Australian and American passports of [X] and [Y]. This ceremony took place in accordance with the document prepared by Mr [Scranton] called “The [Scranton] Family Passport Protocol” dated 6 October 2009. It was that each parent would have one child’s American and Australian passport such that neither parent could take both boys on any occasion as they did not have the passports from the same country for each child.
158.The father’s position is that as the mother signed that protocol she consented to it and all the consequences of having signed it being overseas travel, who holds which passport, when passports are released and the like. However, as I have already determined consent, or free flowing exchange of contrary ideas, coming to a consensual agreement between adults, is not possible with the father. Consent for the father is his presenting a detailed, comprehensive, thorough document with which the other must agree.
159.This protocol is no different to many other “agreements”.
In Part 2 of his Written Argument (at pages 14 and 15), in order to illustrate the lack of foundation for her Honour’s findings, the father called attention to the different drafts that attended the “Temporary Separation Agreement” to which he referred in his trial affidavit and observed that the mother asked for particular changes to be made.
In relation to the passport agreement, the father asserted, after detailing the various drafts of the document and the changes made to it, in Part 2 of his Written Argument (page 18):
…The basic facts outlined in the mother’s account are consistent with the father’s account. However, the appellant maintains that there is no objective basis for the mother’s assertions that she felt “threatened”, “pressured”, “harrassed” [sic] and “intimidated.” These claims are inconsistent with her own actions: initiating phone calls to the father, proposing changes to the agreement, inviting the father and the children to her work place to sign the agreement, coming to the father’s home to exchange passports, and driving the father and the children in her car to a nice restaurant so that all four of them could have dinner together – all of which took place after the parties had been separated for more than
14 months. These are not the actions of a woman who feels “threatened”, “pressured”, “harrassed” [sic] and “intimidated.” The mother’s words are claims fabricated months after the events occurred, solely for the purpose of obtaining a desired outcome in a legal proceeding.
While the facts surrounding the formulation and completion of the passport agreement were basically similar, the mother’s clear evidence was that she felt she was not in truth participating in a discussion but was being pressured by the father. The father clearly does not accept the mother’s assertion as being a reflection of her true feelings; it was an issue before her Honour for determination.
Her Honour was called upon to make a decision which was quintessentially a discretionary one. The principles which govern an appeal from such a judgment have earlier been set out. That it may have been open to her Honour to take a different view of the evidence, preferring the father’s version to that of the mother or placing a different complexion on the evidence than she did, does not establish error on her part.
Ground 4 in the Second Amended Notice of Appeal, challenges findings and conclusions reached by the Federal Magistrate in [88] and [89] of her reasons regarding the father’s home school rules and their affect on the children’s learning environment, which were not “adequately supported by the evidence”. The father’s Written Argument paragraph 4 of Part 2 (page 9) refers to [88]-[90] in which her Honour, after referring to the methods adopted by the father and mother for the home schooling of [X] said at [90] “I find those rules tyrannical and contra to an environment encouraging [sic] assisting children to learn”.
The father points to unchallenged evidence that both children, who are now in school outside the home, were doing extremely well and argues that her Honour’s comments were unsupported by the evidence. It seems to us that this instance and certain others in the judgment to which the father refers in his written argument, appear to be a reflection of her Honour’s opinion rather than a finding on the evidence. While these observations may have distracted from the reasoning process rather than enhancing it, they do not admit of error.
In another example, Ground 5, the father refers to her Honour’s comment at [236], which he asserts is “not adequately supported by the evidence”:
Further, I am concerned that although there is no physical violence in terms of the considerations under section 60CC(2)(b), the children have been exposed to psychological harm from their father’s behaviour. It is not abusive behaviour that is directed to the children or mother as such but rather it is the consequences of the father’s obsessions that have resulted in abuse of the children. The tape on the floor in the flat where toys could not be left, five hour family discussions when the boys were three and five, requiring [Y] at age 3.5 to be silent in the two bedroom flat whilst [X] was being home schooled and the like.
The father points (in Part 2 of the Written Argument, page 11 paragraph n) to the evidence of Dr W in his report dated 13 July 2010 on page 37 and repeated in the father’s Written Argument (at page 11) in which Dr W said:
I did not form the view that the children have been abused or neglected in any substantial way. There have been a couple of incidents of the children being exposed to conflict between their parents but in the scale used by the Family Court, these have been at the lower end and not frequent. Mrs [Scranton] would probably argue that Mr [Scranton]’s approach to parenting, which is essentially driven by his obsessional personality habits, in some ways is a form of neglect in that it denies the children a broader range of opportunities, and in some ways is a form of abuse in the sense that it is extremely controlling, however I am not of the view that these issues are of such great weight that they dictate the limitation of his time with the children along the lines of that which they are experiencing at the moment. Nevertheless, these matters are a consideration and I have commented on them elsewhere.

Her Honour as the finder of fact in the matter was not obliged to accept

Dr W’s view on any matter. It was for her Honour to weigh his evidence with all of the other evidence in the case and from that come to her conclusions
The father has not demonstrated appealable error in any of the grounds raised in this part.

Errors in procedure and evidence (Appeal Grounds 19-32)

We have considered all of the matters asserted as errors going to her Honour’s discretion under these grounds of appeal and have considered the father’s extensive written submissions contained in the Written Argument document. None of the asserted errors is made out. The grounds refer to matters of procedure, disagreement as to the complexion placed on various events in the parties’ past by her Honour, and matters irrelevant to appellate challenge. We propose to refer to several grounds by way of illustrating our conclusions.
Ground 20 asserts an error in that, although her Honour ordered that the father could rely on his pre-trial affidavits as well as his trial affidavit in the hearing before her, in her reasons when she outlines the documents that she has read as forming the written evidence, she refers to the father’s pre-trial affidavits but not the annexures to those affidavits. This complaint (even if it has substance) would not cause us to interfere with her Honour’s judgment.
Ground 21 takes issue with her Honour’s comments at [148] in which she compares the documents provided to the mother by the father in support of his position and by which she found he had secured the mother’s agreement through “pressure or weight of material” and the extensive affidavits filed by him in the proceedings. The father alleges that her Honour through this comment attempted to “intimidate him” and relies on the “implication that …” if the father presents “documentary evidence of a voluminous nature” in future court proceedings, he will be regarded as “imposing…his will upon others” and will be unsuccessful in obtaining the parenting orders he seeks. We do not accept the implication asserted by the father and the suggested consequence.
Ground 24 asserts that her Honour displayed prejudice against the father in not making adverse findings against the mother in relation to her application that his time with the boys remain supervised until they were of high school age. The fact of the matter is that her Honour declined to make such an order as sought by the mother; she gave extensive reasons why, in her opinion, the time with the father should be unsupervised, and she gave effect in her orders to that decision.

Errors of law (Appeal Grounds 33-54)

Again we do not propose to consider each ground separately, although we have considered the father’s Written Argument in relation to each. (The father’s Written Argument deals with these grounds in Part 2 from pages 54 to 113). We will, however, refer to the grounds to which his oral argument was directed during the hearing before us, on the basis of our understanding that these matters were of particular significance, as he saw it, to the appeal.
In Grounds 33 and 34 the father asserts that in granting sole parental responsibility to the mother, the Federal Magistrate erred in her application of the Act, and that having granted her sole parental responsibility, the Federal Magistrate erred in not ordering the mother to notify the father in the event of major long term issues regarding the children.
In Part 2 of the Written Argument (from pages 54 to 69) the father argued that her Honour had misapplied the law in granting the mother sole parental responsibility rather than leaving some matters for joint responsibility. The Written Argument cites extensively from the authorities and posits the argument that the decision to order parental responsibility is not binary – that is, it is not either joint or sole but can reflect an apportionment of responsibilities between the parents.
Interesting as this argument might be, in this case her Honour found, relying on the evidence of Dr W:
228. …[Dr W] could see no way this important responsibility could be shared because of the father’s obsessive and desiccating approach to debate and discussion. He saw little ability in the father to exercise sole responsibility because of his need to gather all the relevant information, sort and catalogue it which would make it impossible for him to make a timely decision…
229.It is clear that the mother cannot discuss parenting issues with the father as his conduct in the marriage to such discussion has traumatised her. Imposing this burden upon her would only compromise her hitherto high level of parenting and thus be a negative impact on the children. Their mother is the children’s only functioning parent at this time.
In our view these conclusions and the order concerning parenting responsibility were entirely open to her Honour in the context of the whole of the evidence in the case. The father has not pointed to any error in the exercise of her discretion in this regard.
Grounds 35 and 36 relate to the Federal Magistrate’s consideration and determination of the father’s time with the children in the light of the expert opinion.
In both his oral argument and in Part 2 of his Written Argument (at page 69), the father argued that her Honour departed “without sufficient justification” from Dr W’s recommendation as to the time that should be spent between the father and the boys, and that she did not correctly apply the provisions of the Act in determining their time with him.
The gravamen of this complaint is that in making orders about the father’s time with the children, the Federal Magistrate relied on the opinions of the single expert, but then misconstrued the expression of those opinions given in the expert’s reports and in the course of the expert’s cross-examination. In particular, the father submitted that contrary to the findings in her Honour’s judgment (at [71], [251] and [292-293]), the order for only one overnight occasion each fortnight was not supported by the expert.
The father referred to several paragraphs of her Honour’s judgment in support of his argument:
71.Dr [W] said, at the conclusion of his evidence, that alternate weekends being one night a fortnight, was probably the dosage the boys could cope with together with some time in the holidays
…
251.The orders posed by the father for effectively an equal time arrangement in 12 months would be a significant change to the children’s present and past care arrangements. In his second report Dr [W] did not support equal time but an arrangement of four nights a fortnight. In his oral evidence at the hearing he reduced this to one overnight period a fortnight and said the question for the Court was the dosage of time the children could spend with their father without being exposed and harmed by his eccentric behaviour.
…
292.In relation to the issue of time I have formed the view on all the evidence that I will make orders progressing the father’s time to one weekend a fortnight being a Saturday morning to Sunday afternoon each alternate weekend.
293.This is the dosage of time Dr [W] said the children could cope with in their father’s care. It is similar to the time he was spending prior to his breakdown and deteriorating functioning in July 2009 and it is a length of time the father can cope with in placing the children’s needs as a priority over his needs.
The father argued in Part 2 of his Written Argument (page 69) that nowhere did Dr W make that recommendation and observed that:
(i)In the second complete paragraph on page 39 of the family report, Dr [W] wrote:
I felt that an arrangement that might work, bearing in mind the boys’ close relationship with both of their parents and that, the above remarks notwithstanding, one does not want to run the risk of [X] developing similar dysfunctional obsessional habits as his father, would be for them to spend maybe four overnights with their father a fortnight in two blocks of three days and one day.
In order to evaluate the merit of these grounds it is necessary to examine the evidence before the Federal Magistrate.
In his report dated 13 July 2010 Dr W interviewed all members of the family. He wrote:
While I am not necessarily supporting a shared living arrangement, and indeed I would not favour that, whatever arrangement is put in place, it is likely that there is going to need to be a balance struck by the children being able to participate in the spiritual experiences which their father values and also being able to participate in the experiences (probably a somewhat broader range) which their mother values...
…
I felt that an arrangement that might work, bearing in mind the boys’ close relationship with both of their parents and that, the above remarks not withstanding, one does not want to run the risk of [X] developing similar dysfunctional obsessional habits as his father, would be for them to spend maybe four overnights with their father a fortnight in two blocks of three days and one day. Conventional families would probably organise an arrangement like this around a weekend one week and a mid week visit the following week, however I think Mr [Scranton] would argue that he would like to be able to have the boys on Sundays to ensure and [sic] continuity in at least a part of their religious practise…This is really a matter for the parties and the Court if necessary to resolve.
The father referred to the cross-examination of Dr W by counsel for the Independent Children's Lawyer in which she put a series of hypothetical questions to him acceptance of which, she argued, would result in the boys spending an alternate weekend day with the father. The father argued, and it seems correct, that Dr W did not accept the basis for the questions, that is the hypothetical proposition, and that his agreement with the ultimate conclusion put by the Independent Children's Lawyer was not a qualification of his earlier position.
This part of the cross-examination was premised by counsel for the Independent Children's Lawyer on a potential finding by the Federal Magistrate that the father was not always truthful (we interpolate here that no such finding was in fact made by her Honour):
[MS DRUITT]: How would it affect your recommendation?
[DR W]: Well, I - I - I think probably in terms of the dose, if I could put it that way. The - I mean, I think that in this matter that the - I - I'm more concerned at this point for [X] than - than for [Y]. I think [X] is at risk of getting caught up in his dad's thinking. As I say, I don't - he – he has come into this style of thinking from a completely different point than - than Mr [Scranton] has. Mr [Scranton] has come to this point partly out of – whatever shaped his own background, and - and I think a formidable intellect and a capacity to organise thinking and - and that sort of thing. I don't think that [X], as I say, has got quite that same capacity, but he is imitating his dad, he copies, and I mean, I think he still is an imaginative kid, but the risk for him is copying and - and the more he gets drawn into his dad's, you know, extremely obsessional way - approach to - to every problem, the more exposure he gets to it, the more he is likely to copy it, and - and the more time he spends with his mum, or - or the greater proportion of time he spends with his mum, the - the less likely he is to be drawn - drawn into it. So that really it has to do, I think, with the amount of - the amount of time. I don't know that it matters whether it's overnight or not.
[MS DRUITT]: So what we might then get to, an alternate weekend being the sized dose that you think [X] could cope with of his dad?
[DR W]: Yes, it could - it could well be. (Transcript, 28 July 2010,
page 232-233)
However, the evidence of Dr W in response to examination by counsel for the mother and by the father does reflect such a change. Counsel for the mother said:
[MR KENNY]: Yes, and can I suggest if these boys are going to live with their dad four nights a fortnight, or 50/50 as Mr [Scranton] wants, that level of exposure to him and that level of living with him, these boys, if that relationship is going to survive and deal with his condition, the boys are either going to need great depths of resilience or dependency or otherwise they're going to take flight?
[DR W]: Well, I - well, I guess the question in my mind is how much is enough or how much is too much, and it - I - I got - you know, I had a snapshot, I guess, from - from my assessment, and - and I mean, I wasn't saying four days was - I think I use a qualified term, but I - but - but what I saw, the way I saw it and the information available to me suggested that that would be compatible with - with finding a reasonable balance, but you know, the court has obviously had a broader exposure and I guess they can - ultimately they will make up their own - their own mind about that, but I mean, I think I tried to point out that the - that - I think that there are some things which suggest that there may be some sort of mollifying - mollifying factors in there that would enable one to contemplate as long as four nights a fortnight, but that as I say, that ultimately depends on where the court - you know, how the court sees those same things. (Transcript, 28 July 2010, page 260)
In the course of cross-examination by the father, Dr W gave the following evidence:
[MR SCRANTON]: Okay, so if they were spending half their time with me, is that something that concerns you?
[DR W]: Yes, I think it would.
[MR SCRANTON]: All right. Now you said you would not necessarily favour a shared living arrangement. Is there some point in the future when the kids are older when you might favour it?
[DR W]: Well, I think there would probably need to be a fair bit of change in yourself for that to happen
…
[MR SCRANTON]: Thank you. You suggested four days a fortnight. Why not three or five?
[DR W]: Yes, well
[HER HONOUR]: Good question, Mr [Scranton]. Good question.
[DR W]: And I even qualified that. So I - I - what I was saying was that - that - that based - just based on what my opinion was, I could - I could see an arrangement somewhere around four days working?
[MR SCRANTON]: So you're saying that's more or less an approximation?
[DR W]: Yes.
[HER HONOUR]: But broken up into two distinct parts?
[DR W]: And - and what I was trying to do with that was to - as I say, provided the court felt - didn't feel too negative about your parenting, that - that giving the boys a chance to spend some time with you each week would be good, and another - and if one was going to do that, then one way to do it would be to - would be to use that sort of arrangement that I talked about, another approach.
[MR SCRANTON]: But to summarise the issue, we could say that the - the four isn't sort of a magic number?
[DR W]: No.
[MR SCRANTON]: There's some judgment and discretion there?
[DR W]: That's right.
[HER HONOUR]: It's called flexibility.
[MR SCRANTON]: Yes, thank you, your Honour.
[DR W]: Really, it was to give the court an idea. (Transcript,
28 July 2010, pages 302-303)
While it is perhaps not strictly accurate to say, as the Federal Magistrate did, that Dr W “reduced this to one overnight period a fortnight” in his oral evidence, a reading of his evidence demonstrates a cautious original recommendation and a movement in that opinion reflective of matters put to him during cross-examination. It is pertinent to observe that he often remarked that the Court would have other information not available to him. His final expression in cross-examination by the mother’s counsel was, in our view, very cautious: “…there may be some sort of mollifying…factors in there that would enable one to contemplate as long as four nights a fortnight”.
As we have already observed, her Honour’s decision on this point (and others) required a consideration of all of the evidence that was relevant to the issue, including the expert opinion. The expert opinion was neither decisive nor conclusive. Her Honour’s decision on the amount of time to be spent by the children with their father is amply supported by the evidence, and we find no appealable error demonstrated.
Ground 39 asserts that the Federal Magistrate gave “no justification for declining to make orders for the children to spend time with the father on most of the special days sought…”
The father makes reference to this issue at several places in his Written Argument and it was a matter raised in his oral submissions.
Order 3(a) made by the Federal Magistrate provided for the father to have time with the children for 12 Sundays from 9am until 4pm and there after. Order 3(c)(i) provided from 9am Saturday until 5pm on Sunday each alternate weekend.
Order 3(c)(vi) provided that he spend time with the children from 9am on Orthodox Good Friday until 5pm on Orthodox Easter Sunday.
As her Honour set out in [18] of her reasons, the father sought orders that he spend time with the children on many more days of religious observation and of cultural importance than those ordered:
The father also sought specific orders in relation to: school holiday time; Christmas time; children’s birthdays; parents birthdays; an extraordinary number of saints days; orthodox holy weeks and orthodox holy dates; Father’s day; Mother’s day; Australia day; day of the live broadcast of the USA Superbowl games; United States Thanksgiving Day; Anzac Day; Queens Birthday; Western Ascension Thursday; Western Pentecost Sunday; Canadian Thanksgiving Day; the Annunciation of Theotokos; the feast of St Peter and St Paul; the Dormition of the Theotokos; and [X]’s name day including the day observed for the Beheading of St John the Baptist.
At [296] she said:
I will not make orders for the father to spend the 30 or so special days he seeks with the children, only those proposed by the Independent Children's Lawyer.
In addition to those we have set out, her Honour did make orders that provided for time to be spent between the father and the children in school holidays, Christmas Day, Father’s Day, the father’s birthday and Australia Day.
In Part 2 of his Written Argument (at page 74) the father submitted:
(g) …Ground 39 demonstrates that her Honour did not make orders for the children to spend time with the father on most of the special days sought in his proposed final orders, including holidays of significance to their religious faith and their American cultural heritage.
There can be no doubt that religious observance and church attendance are matters of significance to the father and that during the relationship he had taken the children with him to church and ensured their religious education.
He argues that the order providing for time over Easter is an inadequate recognition of this important matter. The father had sought an order that allowed him to spend time with the children from the weekend of Palm Sunday up to and including the Tuesday after Easter Sunday to enable him to attend the various observations in those weeks. He also argued that the order “made it impractical for the children to attend church with the father on the morning of Orthodox Holy Friday”.
The father did not indicate why it was impractical, although we note that in the evidence the father said he attended a different church each Sunday and could not indicate the times of any particular service.
He further argued that the orders did not allow him to continue practices from the marriage such as listening to a radio program of hymns on a Sunday evening, watching the hot air balloon launch on Australia Day, and attending a mid-week performance of Handel’s Messiah.
Although in Part 2 of his Written Argument (at page 82) the father submitted that the Federal Magistrate gave no “justification” for declining to make orders for the children to spend time on the feast and other days sought by him, during the appeal hearing he conceded that he had not proposed any hierarchy of preference or importance in relation to these dates, not distinguishing in importance between Ascension Sunday and the Superbowl games.

The determination of how much time the children should spend with the father was within the exercise of her Honour’s discretion. The evidence of Dr W about the father’s disorder and its effects on those around him formed a part of her ultimate decision as did the whole of the evidence including the father’s religious observances and their importance to him. As we have indicated, the law establishes a significant barrier to appellate challenge to discretionary decisions and we do not find any error shown. It must be borne in mind that the additional days proposed by the father did constitute a considerable period of time. But it must also be borne in mind that some of the days in question may on occasions occur when the children are with the father under other orders made by her Honour.
Grounds 43 and then Grounds 45 to 54 related to proposals for the children to travel overseas with the father.
The father alleged that the Federal Magistrate failed to give consideration to an overseas trip proposed by the father that would have allowed them to celebrate their paternal grandparents’ 50^th wedding anniversary (Ground 43).
It was the father’s case that it was in the children’s interests to get to know and to maintain relationships with extended family living overseas, principally in the United States of America. During the marriage the parties had travelled overseas with the children. To that end the father had sought orders permitting him to take the children overseas.
Her Honour ordered:
12.The father may travel to the USA with the children on or after 4 March 2013 for a period not exceeding one calendar month each alternate year provided that:
a)The father provides to the mother a copy of the travel itinerary not less than 2 calendar months prior to departure.
b)The father provides to the mother a copy of the return air tickets for each child not less than 28 days prior to departure
c)The father provides the mother with a telephone number and address for the children during their stay in the USA.
d)The father lodges with the mother’s solicitor the sum of $5,000 as security for the children’s return 21 days prior to the date of departure. Such funds may be released to the mother in the event the children are not returned to the mother within 48 hours of the scheduled return date …
Similar orders were made in relation to the mother although she was not required to lodge a bond against a failure to return the children.
As already indicated, one purpose of the proposed overseas trips was to allow the children to attend their paternal grandparents’ 50^th wedding anniversary. That event has now passed. During oral argument we suggested to the father that there was little utility in pressing the ground of appeal (Ground 43) which related to this event. The father argued that while the event has occurred, he still wished to agitate error in her Honour’s failure to make that order. We do not propose to consider this aspect of the appeal as it is futile.
As to the overseas trips generally, the father had proposed as his first preference that he be permitted to take the boys overseas for three months (which would include the anniversary party). He notes in Part 2 of his Written Argument (at page 93) that “…the departure date for those proposals had already passed by the time of the final hearing, so the orders sought by the father were for a trip of approximately 10 weeks or, in the alternative, approximately 5 weeks.”
In relation to the father’s proposal for overseas travel, her Honour said:
196.The father proposed the children spend almost three months overseas in circumstances where he has never cared for them alone for such a long period, they had never been separated from their mother for such a long a period and the boys are both at school.
197.The trip, as proposed, further highlighted the father’s inability to see what is best for the children at an emotional level when his needs are also being considered.
198.[Y] at six and a half is simply too young to be separated from his only functioning parent for such a lengthy period of time. The consequences of [Y]’s separation from his mother were put to the father. The father said he would be fine. His mother did not agree with that nor did the Independent Children's Lawyer, and this evidence highlighted what I see as a fundamental difficulty with the father’s understanding of his children’s needs.
The father complains that her Honour’s reasons do not refer to the differing lengths of time he proposed for the travel. Her Honour clearly turned her mind to the father’s desire to take the children overseas and ordered that it occur for periods of not more than one calendar month. This, in our view, entirely answers the father’s submission at page 93 of his Written Argument:
(i) If Her Honour’s concern was that “almost three months” was too long, no explanation is given as to why the father’s proposal for a shorter trip was not considered.
(j) Furthermore, even if her Honour believed that the shorter trip of 5 weeks was too long, she gave no guidance as to how long of a trip would be appropriate at the children’s current ages, and there is no indication that she gave any consideration to another trip shorter than the two alternatives proposed by the father.
The father returned to the issue of international travel in other submissions. At page 96 of his Written Argument, in relation to Ground 45 he asserts:
45.In Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, the learned Federal Magistrate departed from the recommendations of the court-appointed psychiatric expert without sufficient justification.
At [295] of her reasons the Federal Magistrate said:
It is important the children travel to see their extended family. I do not see the father is a flight risk. He is [sic] law abiding citizen and I accept Australia is his home. He is quite hostile to America due to its foreign policy and I have very little concern that he would spirit the children away or live in America or anywhere else with them.
The father raised other challenges to her Honour’s order about international travel, but in this regard, it seems that his reference to the “recommendations of the court-appointed psychiatric expert” refer to the recommendations at page 39 of Dr W’s report of 13 July 2010, and are reproduced in Part 2 of the father’s Written Argument (at page 100):
I also note that both parents are joint US/Australian citizens (as are the boys) and in such families who might wish to travel overseas during vacations, the notion of a couple of the shorter school holidays being fully available to each parent can be helpful, particularly if the prospect of negotiations on a level playing field about such things as trips overseas are going to be difficult and it is better if the Court defines the parameters of these things rather than it being bogged down in failed parents’ negotiations.
The father asserts error in that the Federal Magistrate did not “follow this suggestion in the family report that ‘a couple of the shorter school holidays being fully available to each parent can be helpful’”.
We do not accept that, read in its context, the expert was in fact making a recommendation, but rather, as he had done in relation to other aspects of his evidence, deferred to the court to make that decision.
The issue of international travel was a matter for her Honour to determine as part of all of the issues in the case, and in this matter particularly, her Honour was astute to the expert’s view about the need to balance the amount of time that the children spent with their father against the capacity of his behaviours to have an adverse impact on them.
The father raises other challenges to the order in question, including:
a)that he alone was ordered to lodge a bond against his failure to return the children when the mother was not;
b)that it is inconsistent with Australia’s obligations under the Convention on the Rights of the Child;
c)that in formulating an order that any international travel not commence before 2013, the Federal Magistrate took into account irrelevant matters;
d)did not properly take into account the different ages of the children;
e)erred in accepting the proposals of the Independent Children's Lawyer in this regard;
f)the orders create “an undesirable legal precedent, the effect of which is to create an incentive for non-custodial parents to relocate outside Australia in order to gain greater access to travel internationally with their children habitually resident in Australia”; and
g)the orders regarding emergency travel “effectively authorise the mother, without any further court proceedings, to relocate the children permanently to America and suspend all visitation with father indefinitely, thus rendering orders 3, 7, 10, 11 and 12 ineffective and unenforceable”.
We do not propose to consider each of these complaints individually because, in our view, some do not form a proper basis for challenge of her Honour’s reasons, but principally, as we have already made plain, whether and when the father could take the children out of Australia for international travel was a matter for her Honour’s discretion. In none of his submissions has the father demonstrated the type of error which would warrant appellate intervention.
Also in relation to travel, the father as part of the orders sought by him, requested time with the boys to observe the transit of Venus and asserts in Ground 41 that the Federal Magistrate erred in not considering this proposal.
In Part 2 of his Written Argument (pages 87 and 88) the father sets out extracts from his trial affidavit and from the proposed orders that concern this issue. The family had observed the transit of Venus in 2004. According to his affidavit, the next transit of Venus will be on 6 June 2012. In his trial affidavit at paragraph 1355, the father said:
The 2012 transit will be visible from Australia, New Zealand and much of the South Pacific. I may want to take the boys on an international expedition for an extended period of time before and after this observation.
His proposed order in this regard was:
Notwithstanding the preceding orders, the children shall be in the father’s care from 3 pm Friday 1 June 2012 to 9 am Monday 11 June 2012, and the father shall be at liberty to remove the children from school all day on Wednesday 6 June 2012.
Although the matter was the subject of discussion during the trial, the father correctly submits that there is no order relating to the transit of Venus in her Honour’s orders, nor any reference to it in her Honour’s reasons.
Although apparently an oversight by her Honour, we repeat that the amount of time spent between the father and the boys (and its purpose) was a matter for her Honour based on her assessment of all of the evidence. We do not accept that her failure to consider this discrete issue undermines the judgment nor amounts to an error of the type which would warrant intervention by us.
The father further alleges in Ground 44 an error by her Honour because she made an order that the parents meet to hand the children to the other parent at a location different from that which was agreed.
The father sought an order that the changeover be either at Hungry Jacks in Sydney or McDonalds in Sydney. It seems that towards the end of the hearing a general consensus was reached that it should be at Hungry Jacks in Sydney, but her Honour, in making the orders specified McDonalds. In Part 2 of the Written Argument (at page 95) the father asserts that her Honour failed to give reasons for not making an order consistent with the parties’ agreement and that the address noted in the order is incorrect.
If this be an error, it is, in our view, of no consequence to the substance of the judgment. Further if the parties were able to agree on a different location during the hearing, they can do so again, and if necessary, embody that agreement in a consent order.
The father asserted in Grounds 40 and 54 that the court had failed to give proper consideration to two agreements which were parenting plans.
Ground 40 is in the following terms:
The learned Federal Magistrate did not give proper consideration to the document entitled “Arrangements for the Care and Raising of [X Scranton] in the Event of the Death or Incapacity of Both Parents” as a parenting plan, contrary to the requirements and objectives of the Family Law Act 1975.
The document to which the submission referred was made in 2001 and contains many detailed instructions for the care and education of the child X. The father argued that by its nature, the agreement was a parenting plan as defined by s 63C(1) of the Act and, the Federal Magistrate was thus obliged to take it into account pursuant to s 65DAB of the Act.
Ground 54 is in the following terms:
In Order 15 made 26 October 2010, regarding the children’s passports, the learned Federal Magistrate did not give proper consideration to the [Scranton] Family Passport Protocol as a parenting plan, contrary to the requirements and objectives of the Family Law Act 1975.
After citing the sections of the Act relating to Parenting Plans, the father argued in Part 2 of the Written Argument (at page 112):
(e)In the transcript of 26 July 2010 on page 57 lines 21-33, the father questioned the mother about consultation regarding long-term decisions. Although he used the term “shared parenting,” the context makes it clear he is talking about shared parental responsibility.
All right. If we did have a shared parenting arrangement, where we were obligated to consult with each other on long term decisions, would you prefer the communication between us be verbally or in writing?--- At this point, I don’t know. Like, I wanted us to agree verbally for years, but you wouldn’t, and I just don’t know where the trust would come from, and I can’t read documents any more.
Of any length?--- I guess I don’t see parenting the kids as being about documents.
Well, let me ask you this: if there’s a disagreement about a particular issue, you know, is it reasonable to put a proposal in writing whether it’s one paragraph or one page or ---?--- I think this is why I don’t think I can parent with you. Look, you’re just supposed to know how to parent. You’re not supposed to write documents and make agreements.
(f)The views expressed by the mother are contrary to Section 63B of the Family Law Act, which states that “The parents of a child are encouraged…to agree about matters concerning the child.”
In the course of oral argument, the father conceded that he did not submit to the Federal Magistrate that these two agreements were in the nature of parenting plans nor did he make submissions on how she should take them into account as parenting plans. We observed that it was difficult to understand how he could succeed on this point before us. In response, the father argued, in effect that the Federal Magistrate had an obligation to recognise the documents as parenting plans and act on them accordingly. We do not accept that argument. If the documents were truly parenting plans and recognised as such by the father (and, by inference the mother) the above quoted exchange between the father and mother would have focussed on the agreements as having that character.

Error of form (Appeal Ground 55)

There was only one ground (Ground 55) raised under this heading and it concerned Order 11 made by her Honour which was:
Declaration that the principal/habitual place of residence of the children is Australia.
The father argues at page 113 of his Written Argument:
(b) “Declaration that…” is an incomplete sentence.
(c) Although the meaning of Order 11 is clear, does Australia really want its family law courts to promulgate their decrees in sentence fragments?
(d) How far into illiteracy must we descend before a court of appeal has the courage to say (in a complete sentence), “Enough is enough!”?
(e) The order should begin, “It is declared…”
This is not a proper challenge to the order in question. Indeed some court orders and declarations are made, at least initially, in such a form.

Conclusion

We have not been persuaded that there is sufficient substance in any of the father’s grounds of appeal such as would warrant our interference with her Honour’s orders. Accordingly, the appeal must be dismissed.
Given that the father’s appeal is to be dismissed, it was unnecessary for us to seek submissions from the other parties, being the mother and the ICL in relation to the father’s written document relied on at the hearing before us.

Costs

As is customary, we invited the parties to address us on costs in the event either that the appeal succeeded or failed.
The mother sought costs against the father in the event that the appeal failed. The Independent Children's Lawyer sought the same order (although in terms of quantification of the costs, at a lesser sum than the mother).
It was submitted on behalf of the mother that her means were modest – she earns approximately $40,000.00 net per annum and receives other support amounting to about $27,000.00. She owes about $49,000.00 to her lawyers for legal costs. She has not received legal aid.
The father argued that if the appeal failed, he had no resources from which to pay the costs of the mother. He said that while he had returned to work he was only working 80 per cent of the working week. We understand the he earns $5,500.00 net per month. He has debts of about $100,000.00 representing litigation costs and other debts incurred when he was not working.
The father further argued that in any event, he should not be ordered to pay the costs of the Independent Children's Lawyer because their submissions on appeal raised no point different from those of the mother.
Our determination of costs must be considered in the context of s 117 of the Act. We are of the view that the circumstances of this case would justify an order that the father should pay the mother’s costs of the appeal.
We agree with the father’s submission that he should not be required to pay the costs of the Independent Children’s Lawyer. The Independent Children's Lawyer supported the mother in this appeal; the submissions filed on behalf of the Independent Children's Lawyer raised no different issue than those filed on behalf of the mother, and the submissions made by the Independent Children's Lawyer adopted the submissions made by the mother’s counsel and raised matters which did not impact the outcome of the appeal. We will therefore not order the father to pay the costs of the Independent Children's Lawyer.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace and Loughnan JJ) delivered on 5 April 2012.

Date: 5 April 2012

ANNEXURE

Grounds of Appeal

Second Amended Notice of Appeal
Thursday 25 August 2011

Errors in findings of fact (18 grounds)

The Reasons for Judgment contain 50 errors of fact regarding which the contrary evidence is uncontested, and these collectively demonstrate a failure by the learned Federal Magistrate to properly consider the case.
Several of the errors of fact in the Reasons for Judgment constitute a pattern of findings by the learned Federal Magistrate that are contrary to the evidence and prejudicial against the father.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 85 and 119-120 of the Reasons for Judgment, regarding the involvement of the father with the children during the marriage, are not adequately supported by the evidence.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 88-90 of the Reasons for Judgment, regarding the father's homeschool rules and their affect on the children's learning environment, are not adequately supported by the evidence.

The findings, inferences and conclusions of the learned Federal Magistrate in paragraph 235 of the Reasons for Judgment, regarding the relationship between the children and the father, are not adequately supported by the evidence.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 196-199 and 271-272 of the Reasons for Judgment, regarding [Y]'s age and the impact upon the children of international travel with the father, are not adequately supported by the evidence.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 146-148 and 157-159 of the Reasons for Judgment, regarding the negotiation of agreements between the parents, are not adequately supported by the evidence.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraph 170 of the Reasons for Judgment, regarding the father's alleged failure to respect the mother's wishes and "lack of respect for her individuality," are not adequately supported by the evidence.
The findings, inferences and conclusions of the learned Federal Magistrate in paragraph 279 of the Reasons for Judgment, regarding the mother's alleged agreement "that supervised time was counterproductive," are not adequately supported by the evidence.

10. The allegation by the learned Federal Magistrate in paragraph 148 of the Reasons for Judgment, that the father attempted to gain from the Honourable Court “acquiescence under pressure or weight of material," is not adequately supported by the evidence.

11. In paragraphs 172-173 of the Reasons for Judgment, the rejection by the learned Federal Magistrate of the father's testimony, regarding his mental state and the motivation for his actions at the mother's house when returning with the boys from New Zealand, is not adequately supported by the evidence.

12. In paragraph 203 of the Reasons for Judgment, the uncritical acceptance by the learned Federal Magistrate of the mother's testimony, regarding her alleged terror, fear and panic, is not adequately supported by the evidence.

13. The findings, inferences and conclusions of the learned Federal Magistrate in paragraph 283 of the Reasons for Judgment, regarding the concern of the mother and the lack of respect shown by the father in relation to his out-of-town travel with the children, are not adequately supported by the evidence.

14. The findings, inferences and conclusions of the learned Federal Magistrate in paragraph 129 of the Reasons for Judgment, impeaching the evidence of the court- appointed psychiatric expert Dr [W] on the basis of a conjectured ability of the father to "glamour" health professionals, are not supported by evidence from another expert witness.

15. In paragraphs 78, 79, 96, 97, 112 and 124 of the Reasons for Judgment, the learned Federal Magistrate erred by placing undue weight on passages in the first psychiatric report about the father by the court-appointed psychiatric expert (dated 18 March 2010) which were later qualified in the family report by the same expert (dated 13 July 2010).

16. The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 71, 251 and 293 of the Reasons for Judgment, regarding the recommendations of the court-appointed psychiatric expert with respect to the father's time with the children, are not adequately supported by the written report and oral testimony of the expert witness.

17. The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 74 and 228 of the Reasons for Judgment, regarding the recommendations of the court-appointed psychiatric expert with respect to parental responsibility, are not adequately supported by the written report and oral testimony of the expert witness.

18. The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 113 and 128 of the Reasons for Judgment, regarding the father's psychiatric state and medical treatment, are not adequately supported by the evidence.

Errors in procedure and evidence (14 grounds)

19.The learned Federal Magistrate did not solicit submissions from the father regarding the change in hours prescribed in Order 3(a) made 26 October 2010, for twelve initial Sundays of daytime contact, thus denying him procedural fairness.
20.Having granted leave at the interim hearing on 12 April 2010 for the parties to rely at the final hearing on previously filed material, the learned Federal Magistrate then erred in paragraph 41 of the Reasons for Judgment by failing to list among the father's evidence the 70 annexures submitted with his prior affidavits, which were also referred to in the father's final hearing affidavit.
21.The allegation by the learned Federal Magistrate in paragraph 148 of the Reasons for Judgment, that the father attempted to gain from the Honourable Court “acquiescence under pressure or weight of material," represents an abuse of the court's authority to intimidate the father and deter him from submitting evidence adequate to support his positions in future court proceedings.
22.The finding by the learned Federal Magistrate in paragraph 271 of the Reasons for Judgment, that "the father's persistence in that application [for international travel] demonstrated his focus was still on his needs and wants and not what is best for the boys," represents an abuse of the Honourable Court's authority to intimidate the father and deter him from making international travel applications in future court proceedings.
23.The inconsistent standard of evidence applied to the father's testimony regarding his mental state in paragraphs 172-173 of the Reasons for Judgment and the mother's testimony regarding her mental state in paragraph 203 of the Reasons for Judgment demonstrates a prejudicial bias by the learned Federal Magistrate in favour of the mother.
24.The absence of any adverse finding against the mother regarding her application that the father's supervised visitation continue until the children are "in their high school years" demonstrates a prejudicial bias by the learned Federal Magistrate in favour of the mother.
25.In the second sentence of paragraph 133 of the Reasons for Judgment, regarding items the father kept, the learned Federal Magistrate was improperly influenced by scandalous and irrelevant material.
26.In paragraph 200 of the Reasons for Judgment, the learned Federal Magistrate was improperly influenced by irrelevant material regarding homeschool rules for a three-year-old child.

27. In the transcript of 27 July 2010 on page 186 lines 5-30, the learned Federal Magistrate was improperly influenced by personal disagreement with the father's political views.

28. In the transcript of 28 July 2010 on page 212 line 17 to page 213 line 22, the learned Federal Magistrate was improperly influenced by personal disagreement with the father's religious views.

29. The statements of the learned Federal Magistrate in the transcript of 28 July 2010 on page 212 lines 44-47, regarding "forgiveness," represent an abuse of the Honourable Court's authority to intimidate the father and deter him from seeking resolution of a disagreement about church teaching through appropriate ecclesiastical authorities.

30. Having required the father, in Order 12(d) made 26 October 2010, to lodge funds with the mother's solicitor as security prior to international travel, the learned Federal Magistrate erred by failing to make a further order requiring the security to be returned to the father after the children have been brought back to Australia.

31. Order 17 made 26 October 2010, regarding re-listing at short notice, places the father at a procedural disadvantage in all future court proceedings regarding the children.

32. Having granted leave to the mother, in Order 17 made 26 October 2010, to re-list the matter at short notice, the learned Federal Magistrate erred by failing to limit the duration of this order, thus effectively granting such leave indefinitely until the children reach the age of 18.

Errors of law (22 grounds)

33. In Order 1 made 26. October 2010, granting sole parental responsibility to the mother, the learned Federal Magistrate did not correctly apply the relevant provisions of the Family Law Act 1975.

34. Having granted sole parental responsibility to the mother in Order 1 made 26 October 2010, the learned Federal Magistrate erred by failing to make a further order requiring the mother to notify the father of decisions about major long-term issues regarding the children, contrary to the requirements and objectives of the Family Law Act 1975.

35. In Order 3(c) made 26 October 2010, regarding the children's time with the father, the learned Federal Magistrate departed from the recommendations of the court-appointed psychiatric expert without sufficient justification.

36. In Order 3(c) made 26 October 2010, regarding the children's time with the father, the learned Federal Magistrate did not correctly apply the relevant provisions of the Family Law Act 1975.

37. The learned Federal Magistrate did not give due weight to circumstances that existed since the parties' marital separation, as required by the Family Law Act 1975.

38. The learned Federal Magistrate did not give due weight to evidence relevant to the mother's attitude toward the children's relationship with the father, as required by the Family Law Act 1975.

39. In paragraph 296 of the Reasons for Judgment, the learned Federal Magistrate gave no justification for declining to make orders for the children to spend time with the father on most of the special days sought in his proposed final orders.

40. The learned Federal Magistrate did not give proper consideration to the document entitled "Arrangements for the Care and Raising of [X Scranton] in the Event of the Death or Incapacity of Both Parents” as a parenting plan, contrary to the requirements and objectives of the Family Law Act 1975.

41. The learned Federal Magistrate failed to consider the father's proposed order that the children be in his care for observation of the rare solar transit of Venus in June 2012.

42. The hours prescribed in Order 3(a) made 26 October 2010, for twelve initial Sundays of daytime contact, did not make adequate provision for the children's church attendance with the father, thus defeating a primary purpose of the order.

43. In paragraphs 193-199 of the Reasons for Judgment, the learned Federal Magistrate erred by failing to consider an overseas trip that would have enabled the children to participate in the 50th wedding anniversary of their paternal grandparents for a shorter period of time than that proposed by the father.

44. In Order 7 made 26 October 2010, the learned Federal Magistrate specified a different changeover location from the location agreed by all the parties, and the Reasons for Judgment contain no justification for this decision.

45. In Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, the learned Federal Magistrate departed from the recommendations of the court-appointed psychiatric expert without sufficient justification.

46. Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, are not adequately justified by the findings of fact made by the learned Federal Magistrate in paragraph 295 of the Reasons for Judgment.

47. Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, are inconsistent with Australia's international obligations under the United Nations Convention on the Rights of the Child, of which Australia is a signatory.

48. In Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, the learned Federal Magistrate did not make provision for the children to visit their paternal grandparents in the United States prior to March 2013, contrary to the requirements and objectives of the Family Law Act 1975.

49. In Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, the learned Federal Magistrate did not make a proper distinction between the children in accordance with their differing ages, contrary to the requirements and objectives of the Family Law Act 1975.

50. The reasoning of the Independent Children's Lawyer in support of Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, which was not refuted or challenged by the learned Federal Magistrate, represents an abuse of the Honourable Court's authority for the purpose of effecting a change in the father's personality, which is not one of the purposes or objectives of the Family Law Act 1975.

51. Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, establish an undesirable legal precedent, the effect of which is to grant legal rights and privileges to non-custodial parents who are residents of foreign jurisdictions, applying for parenting orders in an Australian family law court with respect to children habitually resident in Australia, in preference to noncustodial parents who are residents of Australia applying for parenting orders in an Australian family law court with respect to children habitually resident in Australia.

52. Orders 12-14 and 4(c) made 26 October 2010, regarding international travel, establish an undesirable legal precedent, the effect of which is to create an incentive for non-custodial parents to relocate outside Australia in order to gain greater access to travel internationally with their children habitually resident in Australia.

53. Orders 14 and 4(c) made 26 October 2010, regarding emergency international travel, effectively authorise the mother, without any further court proceedings, to relocate the children permanently to America and suspend all visitation with the father indefinitely, thus rendering Orders 3, 7, 10, 11 and 12 ineffective and unenforceable.

54. In Order 15 made 26 October 2010, regarding the children's passports, the learned Federal Magistrate did not give proper consideration to the [Scranton] Family Passport Protocol as a parenting plan, contrary to the requirements and objectives of the Family Law Act 1975.

Error in form (1 ground)

55. In Order 11 made 26 October 2010, the learned Federal Magistrate failed to write a complete sentence.

Part 1: Minor Corrections to Grounds …

The appellant wishes to make the following minor corrections to the Grounds of Appeal in the appellant's Second Amended Notice of Appeal filed Thursday 25 August 2011.

Ground 5: The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 235-236 of the Reasons for Judgment regarding the relationship between the children and the father, are not adequately supported by the evidence.
Ground 14: The findings, inferences and conclusions of the learned Federal Magistrate in paragraphs 127, 129 and 287 of the Reasons for Judgment impeaching the evidence of the court-appointed psychiatric expert Dr [W] on the basis of a conjectured ability of the father to "glamour" health professionals, are not supported by evidence from another expert witness.