SOTTO & HENSLEY
[2020] FamCAFC 221
•4 September 2020
FAMILY COURT OF AUSTRALIA
| SOTTO & HENSLEY | [2020] FamCAFC 221 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge summarily dismissed the appellant father’s application to adjourn proceedings, have arms-length association with the child and for the surname of the child to be hyphenated with his and the respondent mother’s surname – Where the child is mature and has fixed views – Best interests of the child – Procedural fairness – Weight challenges – No error of fact or law established – Findings open to the primary judge – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Repetition of submissions made on appeal by the mother – Notice of Contention dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Inadmissible and irrelevant evidence – Application dismissed. |
| Family Law Act 1975 (Cth) ss 45A, 60CC Hague Convention on the Civil Aspects of International Child Abduction |
| Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56 Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41 Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd vDixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Sotto |
| RESPONDENT: | Ms Hensley |
| INDEPDENT CHILDREN’S LAWYER | Peter Lynch Lawyer (not participating) |
| FILE NUMBER: | MLC | 4210 | of | 2007 |
| APPEAL NUMBER: | SOA | 67 | of | 2019 |
| DATE DELIVERED: | 4 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 17 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 3358 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Smith |
| SOLICITOR FOR THE APPELLANT: | Dandenong Family Lawyers |
| THE RESPONDENT: | Litigant in person |
| INDEPENDENT CHILDREN’S LAWYER | Peter Lynch Lawyer (not participating) |
Orders
The Notice of Contention filed on 7 April 2020 is dismissed.
The Application in an Appeal to adduce further evidence filed on 14 April 2020 is dismissed.
The appeal against the orders of a judge of the Federal Circuit Court made on
23 October 2019 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sotto & Hensley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 67 of 2019
File Number: MLC 4210 of 2007
| Mr Sotto |
Appellant
And
| Ms Hensley |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 23 October 2019, a judge of the Federal Circuit Court made final parenting orders in proceedings between Mr Sotto (“the father”) and Ms Hensley (“the mother”) in relation to the parties’ only child X Sotto born in 2006 to be known as X Hensley (“the child”). By his Amended Notice of Appeal filed on 2 December 2019 the father appeals those orders.
Background
To give context to the issues agitated on the appeal it is helpful to provide some background and history of the litigation taken from the affidavits filed in the proceedings before the primary judge.
The parties have been in litigation concerning the child since 2007. At all material times, the child has been primarily cared for by the mother. The father lives and works in the United States of America. In 2003 while on a six month visa, he and the mother met and commenced a relationship, marrying in December 2004 and, although the father returned to the United States of America, he travelled between there and Australia and continued the relationship with the mother.
Apparently shortly after the birth of the child in 2006, the mother and the child moved to the United States of America, according to the father, to take up life there. However, shortly after arriving in the United States of America, the mother returned to Australia with the child. The father invoked the provisions of the Hague Convention on the Civil Aspects of International Child Abduction and in May 2007, the Family Court of Australia made orders that he spend time with the child in Australia. The father said that he visited the child every three months in 2007, had three visits to see her in 2008 and made four visits to see the child in 2009.
Further litigation resulted in orders being made in July 2010 that the father see the child at a contact centre. The implementation of those orders was not without its difficulties and the father brought contravention proceedings when the supervised time did not go ahead. As a result of those proceedings, in April 2011, further orders were made for there to be unsupervised time between the father and the child, and the father saw the child in Australia in 2011.
Seeking an increase of the time the child spent with him, the father in May 2018 applied to the Family Court for further orders. However, he said that on his return to Australia in July 2018, the child told him she did not want to see him and the ordered time did not take place.
In his affidavit filed on 3 October 2019, the father acknowledged that there was little point in persevering with his wish to spend time with the child. By his Further Amended Initiating Application filed on 3 October 2019, he sought orders that he be sent the child’s school reports and that he be permitted to speak to the child’s teachers. Additionally, he sought orders that he receive information from the child’s general practitioner, that the Independent Children’s Lawyer give the child an email address and telephone number at which she could contact him if she wished and finally that he be permitted to send her cards, letters and gifts.
The mother’s filed Response to the father’s original Initiating Application sought, inter alia, that the child’s surname be changed to “Hensley”.
The proceedings before the primary judge
The proceedings were listed for hearing before the primary judge on 23 October 2019. The father was represented by counsel and the child represented by an Independent Children’s Lawyer. The mother appeared for herself.
At the commencement of the hearing, the father made an application for an adjournment in order to seek a Family Report aimed at determining whether the child’s refusal to see him or have anything to do with him was as a result of the mother’s actions. In making that application, it was foreshadowed that if the report indicated that the mother had caused the child to hold those views, then the father would seek orders changing the living arrangements of the child and that she live with him in the United States of America.
In short, the primary judge, by reference to s 45A(7) of the Family Law Act1975 (Cth) (“the Act”), and of the Court’s own motion, summarily dismissed that application finding that the father enjoyed no reasonable prospects of success in that claim.
After the parties were given some little time to discuss the remaining issues between them, the Independent Children’s Lawyer produced a Minute of Order and presented it to the parties. Agreement was reached in relation to some of the proposed orders.
A matter that the parties were not able to agree was the issue of the child’s surname. At the time of the hearing before the primary judge, the child’s surname was that of the father. There was some suggestion that the two surnames be hyphenated, however, the child’s view was that she should be called only by her mother’s surname. The primary judge concluded that the child’s views “could not be clearer” and thus ordered that thereafter the child be known by her mother’s surname (at [17]).
While the father sought orders that he be involved in the child’s education to the extent of receiving information from the school and meeting with the child’s school teachers once a year, the primary judge ordered that the father be kept informed of the child’s school progress and restrained him from attending the child’s school.
The appeal
Three broad challenges are reflected in the Amended Notice of Appeal: the summary dismissal of the father’s application for adjournment and order for a Family Report; the order relating to the child’s surname; and the order relating to the father’s participation in the child’s education.
Summary dismissal of the father’s application for adjournment
The father contended that the primary judge failed to afford him procedural fairness in summarily dismissing his application for an adjournment in order to get an updated Family Report and in ordering the child’s surname be changed to that of the mother.
In order to understand this aspect of the challenge it is necessary to set out some additional history taken from the primary judge’s reasons.
Over the years in which the parties have litigated in relation to the child, several Family Reports had been obtained. At the time of hearing, his Honour had before him a Child Inclusive Conference Memorandum dated 31 October 2018. His Honour quoted extensively from this Memorandum which, in short, reflected the child’s views that she wanted nothing to do with the father. In addition, the Family Consultant formed the view that the child was “mature” and “appeared thoughtful and considered”. She suggested that “considerable weight be given to her views and wishes” (at [6]).
In addition the child had written to the Independent Children’s Lawyer a letter in which she set out her views about the father. It is unnecessary to set out the detail of her letter but it is sufficient to say that it represents an apparently implacable view that she wishes nothing to do with her father in any respect (at [8]).
His Honour said of the letter:
9.I should say that that document is concerning and distressing. It is unpleasant even to have to read it out. It is quite clear this child is enmeshed with the mother, from that document if from no others. The father has indicated that he sought to cross-examine the mother to establish alienation. I have not permitted this because it is not necessary. At the very least it is clear from the mother’s affidavits that she detests the father and is opposed to time. Whether the alienation that has plainly occurred has been deliberate, or just simply functional, if I can so describe it, really does not matter for these purposes. There is no utility to having her cross-examined to establish that, because it takes us no further forward.
His Honour, after noting that the child was then 13 years old and, if the father’s proposed adjournment was granted, by the time a Family Report was ready, she would be about 14 and when the matter next came before the Court she would be about 15, said:
10.… The undesirability of that pathway is immediately apparent. In my view, it is quite clear that there is no real reasonable prospect of the father achieving time in the face of the child’s views as they are expressed. And even assuming there were to be alienation, the child’s views are adamantine, and, as I say, the child is mature for her age. The desire to cross-examine the mother is, perhaps, understandable at one level, but I think it equally shows a certain lack of insight.
Thus his Honour concluded that it was not in the child’s best interests that the matter be adjourned and, given the apparent constancy of her views as reflected in previous Family Reports and the letter written by her, the outcome of any adjourned proceedings was inevitable.
Denial of procedural fairness in refusing the adjournment and request for a further Family Report
The father contended that the failure to grant the adjournment denied him the opportunity to answer the case against him. It was argued that the Independent Children’s Lawyer had, shortly before the hearing, filed a Case Outline to which the child’s letter was annexed and thus he had not had sufficient time to be properly aware of the case he had to meet.
That argument cannot be sustained. First, it was not suggested that the father was not well aware of the child’s views as reflected in the Child Inclusive Conference Memorandum and the handwritten letter by the child. Secondly, the father himself acknowledged in his affidavit filed on 3 October 2019 at paragraph 8 that “given [the child’s] age, there is nothing to be gained by [his] requesting that [the child] spend time with [him]”. Consistent with that view, the orders sought by the father at the forthcoming hearing were for arms-length association with the child, through cards, gifts and presents, for him to be involved in the child’s education and for him to receive information from the child’s general practitioner.
Thus the father’s application on the morning of the hearing was something of a volte-face in foreshadowing an application for a change of living arrangements for the child.
It is important too to note that the primary judge was inclined to the view that even if one were to assume that the child had been “alienated” from the father, the child’s views were “adamantine” and his Honour therefore concluded that a Family Report identifying that fact would not change the ultimate result in the case (at [10]).
The authorities on the point are well-known to the point of being trite. We note what was said by Mason J in Kioa v West (1985) 159 CLR 550 at 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…
(Citations omitted)
This principle is not however considered in a vacuum. The statutory context and the particular facts and circumstances of the case are important in determining whether there has been a denial of procedural fairness (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503–504).
Thus considered in this light, the father’s application for an adjournment and the production of a further Family Report, even had it resulted in a conclusion that the mother had acted in a way so as to turn the child against him, would not have changed the outcome of the matter.
This challenge has not been made out.
Denial of procedural fairness in relation to the child’s surname
It was argued that in making the order that the child’s surname be changed to “Hensley”, the primary judge failed to afford the father procedural fairness because the option of the child being called only by her mother’s surname was not raised by the parties.
At the time of the hearing, the child’s surname was that of the father, “Sotto”. He opposed any change. The father pointed to the mother’s submissions to the primary judge in which she said:
[THE MOTHER]: [The child] has made very, very strong indications and statements that she wants to be [Hensley] and [Hensley] alone. I have suggested to her… because there are two families, maybe she could be [Hensley-Sotto]. She doesn’t want to be [Sotto] at all, and it’s really sad. The whole thing is just awful. So as she is with us – me, [Hensley-Sotto] would be what I would propose to the court. It’s alphabetical, and I’m her primary carer. It doesn’t then omit the [Sotto] from her name.
(Transcript 23 October 2019, p.17 line 45 to p.18 line 3)
It was submitted that the Independent Children’s Lawyer made no proposal about the child’s surname.
Thus was laid the foundation for the argument that the primary judge failed to afford the father procedural fairness by making an order not sought by the parties nor raised with the parties during the hearing.
While it is true that the primary judge did not tell the parties in as many words that he would permit the child’s surname to be changed to that of the mother alone, no procedural unfairness results.
First, in the child’s written expression of her views, the final point is that she be able to change her surname. Secondly, during oral submissions, the Independent Children’s Lawyer encouraged the primary judge to make that order and said:
[INDEPENDENT CHILDREN’S LAWYER]: … I’m suggesting your Honour should make after haring [sic] submission is change of the child’s surname. [The child] has expressed a very strong wish about what she wants. The mother has expressed a wish about it being possibly a hyphenated name. But it – as has the father, so that’s a matter for your Honour as to whether you’re even prepared to entertain it, but if you are, I suggest that’s a matter for your Honour to deal with…
(Transcript 23 October 2019, p.14 lines 31–36)
It cannot be doubted that a primary judge is not confined to “choose” between the orders sought by the parties (U v U (2002) 211 CLR 238 at [140]). Where however, an order is made that was substantially different from those in contemplation of the parties, without affording the parties an opportunity to address those proposed orders, a denial of procedural fairness may arise (Bolitho and Cohen (2005) FLC 93-224 at [85]).
Here, the child wished her surname to be that of the mother. She expressed her views in a firm, apparently implacable manner as appears from his Honour’s description of them, and the Independent Children’s Lawyer in his submissions encouraged the primary judge to make that order.
It could not be said that the orders were outside the parties’ contemplation, indeed the father’s counsel made submissions against the order (Transcript 23 October 2019, p.22 lines 10–11).
No procedural unfairness obtained.
Weight given to the child’s views
The other challenge to this order contends that the primary judge gave too much weight to the child’s views and failed to take into account the child’s maturity and the strength and duration of those views, and did not give a proper consideration to the parent’s cultural background.
His Honour’s reasons make it pellucid that he found the child’s views and the way they were expressed “disturbing” and he was clearly alive to the considerable time over which they have been held and the ferocity with which the child expressed them (at [17]–[18]).
The father is a member of a cultural group in the United States of America. There is no doubt that there is a rich cultural heritage that he could bring to the child. It was submitted that to permit the child to change her surname to that of her mother would have the effect of eradicating the father from her life altogether. The primary judge referred to this concern voiced by the father at [16], however, on this point and the subject of the child’s views, his Honour said:
18.I appreciate the way the father would very naturally see [the issue of name change], and, from his perspective, all the things he says make eminent sense, but we have to confront the child’s age and the significant ways in which her views are expressed. The authorities make it clear that the question of a change of name is all about the child’s best interests first and last. She has obviously aligned herself with her mother and her mother’s family’s name. For reasons not, to my mind, entirely clear, she has a surprising detestation and disturbing detestation of her current surname, but, in my view, her views should prevail and her name should be changed to [Hensley], for all the difficulties that might reasonably be thought to potentially engender.
This challenge is one going to the weight or importance given to the evidence by the primary judge and the father faces a very high bar to appellate intervention, he having to demonstrate that the primary judge’s conclusion was attended by error of the type referred to in House v The King (1936) 55 CLR 499. No error is established.
Restraining the father from attending the child’s school
The father challenges the primary judge’s orders that the father, while being able to receive information about the child’s education, was restrained from attending her school. It was submitted that the injunction was unnecessary and went beyond what was reasonably necessary to protect the child from any risk of harm.
The issue here was not that the father would be provided with information about the child’s education but his desire to attend the child’s school once a year to have a “face to face” meeting with her teachers.
The father submitted that:
… [O]ther than the views of the child being that she did not want the father to attend her school or know which school she attended, there is no basis to oppose the framing of an injunction that permitted a once per year to have a ‘face to face’ meeting with the school out of school hours…
(Father’s Summary of Argument filed 14 April 2020, paragraph 51)
The primary judge said:
19.With the question of the orders about school, once again, the father still seeks to be involved and the child is implacably opposed. In the circumstances, the father’s request to have a once a year face-to-face meeting with the teachers cannot be supported. The child has foreseen it, and is completely opposed, and would almost undoubtedly discover it, in any event…
In the context of the evidence about this child’s views and her “detestation” of the father (at [18]), his Honour’s conclusion was well open to him. During the appeal it was contended that there was no basis for his Honour to surmise that the child would find out about the order if made. Given the evidence and his Honour’s finding about how the child came to have the views that she did and his finding that the child is “enmeshed with the mother” (at [9]), it was a virtual certainty that the child would find out either from her mother or indeed from her school that the father had that access.
The basis for the injunction was well founded in the evidence and no error has been shown.
Inadequate reasons
The father argued that it was not possible to discern the primary judge’s path of reasoning to his ultimate orders.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271, Mahoney JA said that it is not necessary for a judge to reason or be seen to reason from one fact to the next. Nevertheless the conclusion to which he or she comes must be sufficiently explained to enable the unsuccessful party to understand why they have lost (see too Whisprun Pty Ltd vDixon (2003) 200 ALR 447 at [117]).
It is necessary too to understand that these reasons for judgment were given ex tempore. Justice Warnick in Porter v Byrne (2009) 40 Fam LR 644 noted:
[44]…
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time. A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked…
(As per the original)
As Boland J said in Akston & Boyle (2010) FLC 93-436:
28.Recognition that an appellate court should not over critically scrutinise an ex tempore judgment given shortly after a hearing in the same manner as a reserved judgment delivered after some period is based on commonsense and practicality. As Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 “[a]n ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them.”…
Justice Boland expressly acknowledged that those comments were equally apposite to the workload of the Federal Magistrates Court, now the Federal Circuit Court.
Turning then to the particular complaints about the paucity of the reasons for judgment. It was argued that it was not possible to: discern which of the factors set out in s 60CC of the Act were taken into account in determining the issue of the child’s surname; why that issue was determined without cross-examination of the mother; and why, focusing on the best interests of the child, it was necessary to restrain the father from personally attending the child’s school.
Overarching every aspect of this rather sad case is the fact that the Court was called upon to make orders in relation to a child of then 13 years and three months of age, who had, both in an interview with a Family Consultant and in writing, expressed her views about the father and his role in her life which were considered by the primary judge as being unable to be ameliorated. The primary judge referred to those views as the child expressing “detestation” for the father and sought to exclude him from every aspect of her life and from knowing anything at all about her life.
Throughout the reasons for judgment, the primary judge said that the guiding principle in deciding these issues, was the child’s best interests (at [2], [5], [14]–[15] and [18]). As his Honour’s reasons clearly show, he was alive to the other aspects of s 60CC of the Act, although not recited as a mantra, but given the factual matrix, many of those matters could not have made the slightest difference to the ultimate outcome.
Through this factual prism, his Honour’s reasons are clearly discernible.
As to the issue of cross-examination of the mother about changing the child’s surname, the mother, although in her filed Response to the father’s Initiating Application sought that the child’s surname be changed to hers, in her oral submissions appeared to adopt a middle path in suggesting hyphenation of the two surnames. The Independent Children’s Lawyer submitted that the child had a strong wish to bear only her mother’s surname.
In argument on the appeal, counsel for the father was unable to say quite what point or points that cross-examination of the mother would have elicited on the question of the child’s surname change. In fact, the primary judge, apropos the father’s request to cross-examine the mother “to establish alienation” said: “I have not permitted this because it is not necessary. At the very least it is clear from the mother’s affidavits that she detests the father and is opposed to time” (at [9]).
There is no reason to think that the same path of reasoning did not apply to the request to cross-examine the mother on the question of the surname change.
His Honour’s reasons for restraining the father from attending the school are clear. The child did not want it, she would ultimately find out about it and it is not in her bests interests if that occurred.
The challenge to his Honour’s reasons is not made out.
No ground of appeal having been successful, the appeal will be dismissed.
Notice of Contention
The mother, who acted for herself in the appeal, filed a Notice of Contention on 7 April 2020. It was not however, a Notice of Contention but another vehicle by which the mother resisted the appeal and repeated her submissions against the appeal. For this reason, it will be dismissed.
Application to adduce further evidence
By an Application in an Appeal filed on 14 April 2020, the mother sought to adduce further evidence on the appeal. None of the evidence proposed to be called was admissible or relevant on the appeal and at the appeal hearing, we dismissed that application.
Costs
The mother, having represented herself, did not incur any costs in responding to the appeal. Thus no order for costs will be made.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 4 September 2020.
Associate:
Date: 4 September 2020
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