Stativa & Stativa
[2015] FamCAFC 170
•8 September 2015
FAMILY COURT OF AUSTRALIA
| STATIVA & STATIVA | [2015] FamCAFC 170 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Where the trial judge ordered that the mother have sole parental responsibility for the child – Where the father significantly denigrates the mother in front of the child – Where the father’s behaviour constitutes a risk of psychological harm to the child – Where the father lacks insight into the effect of his behaviour and the emotional needs of the child – Where the father alleges bias against the trial judge – Where no evidence of bias is provided – Whether the trial judge gave appropriate weight to the evidence of the father – Where the trial judge preferred the evidence of the mother to that of the father – Where the appeal is wholly without merit – Appeal dismissed. FAMILY LAW – APPEAL – Application for summary dismissal or alternatively security of costs – Where the court considered the merits of the substantive appeal rather than the application for summary dismissal – Where the appeal was dismissed. |
| Family Law Act 1975 (Cth) ss 65Y, 117 |
| Bigg and Suzi (1998) FLC 92-799 Edwards v Noble (1971) 125 CLR 296 Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 Pelerman and Pelerman (2000) FLC 93-037 |
| APPELLANT: | Mr Stativa |
| RESPONDENT: | Ms Stativa |
| FILE NUMBER: | MLC | 9079 | of | 2009 |
| APPEAL NUMBER: | SOA | 47 | of | 2014 |
| DATE DELIVERED: | 8 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Aldridge JJ |
| HEARING DATE: | 14 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 464 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Werner |
Orders
The respondent mother’s application in an appeal filed on 9 June 2015 is dismissed.
The appeal against the orders of Judge McGuire of 11 July 2014 is dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal as agreed or assessed, such costs to be paid forty-two (42) days after agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stativa & Stativa 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 MELBOURNE |
Appeal Number: SOA 47 of 2014
File Number: MLC 9079 of 2009
| Mr Stativa |
Appellant
and
| Ms Stativa |
Respondent
REASONS FOR JUDGMENT
Ms Stativa (“the mother”) by Application in an Appeal filed on
9 June 2015, seeks an order that the appeal filed by Mr Stativa (“the father”) be summarily dismissed, or, in the alternative, that the father provide security for her costs of meeting the appeal in the sum of $25,000.
By Amended Notice of Appeal filed on 3 September 2014, the father appeals against certain orders made by Judge McGuire in the Federal Circuit Court on 11 July 2014. His Honour’s orders relate to X, the child of the parties’ relationship who was born in 2008.
Although an Independent Children's Lawyer (“ICL”) appeared for the child in the hearing before the trial judge, the ICL sought and was excused from participating in the appeal and from attending the appeal hearing.
In particular, the father appeals against his Honour’s orders which discharged earlier orders in relation to the child (Order 1), orders that the child spend time with the father each alternate weekend and at other times as agreed between the parties (Order 4); that the parties and the child attend for family therapy with a therapist nominated by the ICL (Order 5); that not before 1 February 2015, the child attend on Dr N for the purpose of being interviewed to enable a further Family Report to be prepared (Order 6); and that to enable Dr N to prepare that report, she have released to her the court file and all subpoenaed documents and further, that she be permitted to discuss relevant matters with the family therapist (Order 7). Finally, the father appeals against Order 8 of Judge McGuire which directed that the matter be listed for mention and directions in the Federal Circuit Court on a date to be advised in April 2015.
The Amended Notice of Appeal contains some 62 “grounds”. They are not proper grounds of challenge to his Honour’s orders but more in the nature of complaints about the trial judge and the judicial process generally.
In his written submissions in support of the application for summary dismissal, counsel for the mother sought to draw the father’s 62 complaints into coherent or recognisable grounds of appeal and had prepared a summary of argument, in effect, to argue against their having any prospect of success. The father conceded that counsel had identified the essential thrust or nub of the errors that the father contended beset his Honour’s determination. The argument then was directed to the grounds identified by counsel for the mother.
On 29 June 2015, the father filed an amended Summary of Argument in which he sought to support the contended appeal. He agreed that the document set out the arguments which he would make in relation to the appeal. The parties agreed that they would argue the issues as if it was the hearing of the appeal and that, if we were so minded, we could determine the appeal itself notwithstanding the application for summary dismissal. That was a sensible course which we will take.
Summary dismissal
The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 which may conveniently be summarised thus:
·It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
·The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
·That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
·If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
·Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
·The “guiding principle” is doing what is just. Kirby J said at [6]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Finally in Pelerman v Pelerman (2000) FLC 93-037 the Full Court, in setting out the principles articulated in Bigg v Suzi, said at [46]:
…The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
While there is force in the wife’s application for summary dismissal, we consider that the preferable course, particularly in light of the husband’s self-representation, is to consider first the merits of the appeal.
Trial judge’s reasons
His Honour commenced by setting out some brief background to the litigation. In August 2011 Federal Magistrate Whelan made parenting orders in relation to the child. The orders included an order that the father have “substantial and significant time” with the child, which was defined in the orders [2].
In December 2012, the mother obtained an order from a state court, the effect of which was to stay FM Whelan’s orders. At around the same time she filed an application in what was then the Federal Magistrates Court, seeking orders different from those made by FM Whelan [3].
By way of interim order, on 18 January 2013, the trial judge made an order reinstating the orders of FM Whelan. Further the trial judge appointed an ICL and ordered the parties to attend on Dr N for the preparation of a Family Report. The trial judge observed that Dr N was not the father’s preferred reporter and further that after Dr N was appointed, the father did not attend any appointments with her [6].
His Honour set out the parties’ competing positions as to the outcome. The father sought orders that he have sole parental responsibility for the child and that she see the mother on alternate weekends [12] although his Honour noted that the father’s position as to the time the child would spend with her mother changed during the trial. Equally too, while the mother’s first proposal was that all time spent by the child with the father be supervised, she also ultimately proposed that there be no time between the father and the child but that he be permitted to send her letters and cards. The ICL contended that the child should spend no time at all with the father [14].
His Honour identified the issues before him for consideration at [16] to [18], being whether either parent presents a risk to the child in spending time with her and whether the mother should have sole parental responsibility.
His Honour set out the mother’s case at [20] to [22]. The mother described the father’s personality as difficult, vengeful and lacking insight, his parenting style as arrogant and dictatorial and further argued that his behaviour compromises her parenting of the child. Turning to the father’s case,
his Honour noted that the father contended that the mother does not have the capacity to care for the child on a day to day basis and does not provide the child with a proper moral environment in her household. His Honour noted that the father contended that the mother would concoct false and malicious allegations against him to further her own ends and says she is manipulative and selfish [23] to [26].
His Honour observed that the ICL supported the mother’s position and had submitted that while the child loves the father, the father’s beliefs about the mother and his behaviours amounted to an actual and potential risk to the child’s psychological wellbeing which outweighed the benefit to the child of having a meaningful relationship with the father [27] to [29].
The trial judge turned to consider the evidence. He had before him a report from Dr N although his Honour noted that the father refused to attend the interview. However Dr N had had regard to the affidavits and other material filed by the father, but of course, did not see the father with the child [30].
His Honour further noted that the father tendered two reports of Dr L, the father’s preferred reporter. After observing that Dr L was not cross- examined, his Honour referred to some of Dr L’s opinions. In particular at [51] his Honour quoted:
… I have concerns about [the father’s] position, as in the following:
1) It is disturbing that [the father’s] visible bitterness and resentment towards [the mother] appears to have intensified and rigidified over time, rather than receded. He displayed no insight during the assessment about the impact of the litany of contemptuous remarks he made where [the mother] (notwithstanding the substantive differences between them) repeatedly made efforts to conciliate;
2) Similarly, he appeared unwilling to consider, even when given numerous opportunities, the possibility that he even remotely contributed to frictions between the parents. In other words, he characterised [the mother] in virtually unrelenting terms as stupid, untruthful and incapable;
3) These two elements create critical impediments to parental collaboration, and, therefore, to [the child’s] welfare.
Although Dr L recommended in his earlier reports that the father undergo psychotherapy to assist him, it was uncontentious that the father had not taken up Dr L’s suggestion.
His Honour found that the child has a good relationship with her mother [109] and has a comfortable, bonded and enjoyable relationship with her father [110].
His Honour found that the father had denigrated the mother and Mr W, the mother’s new partner, to the child either “directly or indirectly” and was supported in that finding by the contextual and contemporaneous nature of the statements with the child’s visits to him [137(c)]. He further found that the child wants a relationship with the father and that he is proficient in providing for her needs. Thus his Honour concluded that the child would suffer real distress and a sense of loss should her relationship with her father be terminated [137(f)].
Further, the judge found that the father’s demeanour and attitude was corroborative of the mother’s experience of the child’s behaviour being prompted by the father [137(h)].
After considering the proposals of the mother and the ICL that the child should have no time with the father, his Honour said:
142. … Undoubtedly on the evidence [the child] would suffer a sense of loss and distress from an immediate cessation of a relationship that she expects and enjoys. This detriment to [the child] must be balanced against the benefit which would accrue her in removing her exposure to the father’s behaviour. I am satisfied that the father’s actions are deliberate and lack insight into its effect on such a young child. In this sense it is completely selfish behaviour on the part of [the father]. It is, however, situational in its manifestation – at least to this time. …
143. On reflection and on balance I favour an option that would allow the continuation of [the child’s] relationship with her father but give incentive and opportunity for the findings that I have made to be addressed before the potentials anticipated by Dr [N] come to fruition.
Thus his Honour made interim orders that reduced the child’s time with the father from the time provided by the order which was in force at the time of the hearing. He further indicated that he would order the parties and the child to attend for family therapy. He concluded:
145. … The onus is thus on [the father] to acknowledge and address what I find to be his failings as a parent. Such orders taken together with my findings as to the mother’s insight and abilities together with the find (sic) that [the child] is not alienated from the mother satisfy me that there is no unacceptable risk of emotional abuse of [the child] such that I should immediately terminate the relationship between child and father.
146. I am mindful of [the father’s] previous reluctance to participate in therapeutic assistance suggested by Dr [L]. These are to be interim orders and the options set out above remain open to me should [the father] not choose to take up what is intended to be assistance for him and his relationship with [the child].
The grounds of appeal
Ground 1 - The reliance by the judge on the Family Report prepared by Dr N
It is clear and indeed uncontroversial that the father objected to the appointment of Dr N as the expert to interview the parties and prepare a report for the court. It is also uncontroversial that he made the trial judge aware of his objections and, further, urged his Honour to appoint another expert. His Honour appointed Dr N. The father refused to attend any appointments with Dr N.
It is of course to be immediately noted that this order was made by his Honour well before the trial (January 2013 and July 2014) and the father conceded that he did not lodge an appeal against the order. Thus any challenge to it would require a grant of extension of time in which to appeal. No such application was made.
While it is thus unnecessary to consider this ground of challenge to
his Honour’s orders any further, we note that in our view the father’s “complaints” about his Honour’s reliance on Dr N’s report could never have amounted to a ground of appeal. For example, the father contended that the judge was “biased” against him for making the order, that Dr N was “biased” and that the judge and the ICL attempted to “railroad” the father into being interviewed by Dr N who would then make a damaging report about him. The assertions are both speculative and unfounded. The father was unable to point to any evidence or matter before his Honour which supported these assertions.
The allegation of the judge being “biased” against the father was something of a theme throughout the matter. At no point either in the documents or during the hearing was the father able to support his assertions with anything that
his Honour said or did. He further elevated the allegation to “actual bias”. Again, this assertion was unsupported in the father’s written documents and he was unable to support it with one iota of evidence. At its highest, the father said that the judge “mocked” his religious beliefs (although he could not take us to any point in the transcript or reasons to support this claim) and “mocked” his profession.
We do not propose to spend time on this argument save to say this: it is a serious assertion to make in any court that a judge is actually biased against a party. It is, in our opinion, worthy of the strongest censure when any litigant, including a self-represented litigant, makes this assertion without a scrap of evidence to support it, descending into mere invective and slur.
There is no merit in this ground and accordingly it will fail.
Ground 2 - The judge found that the father did not pay child support for the child
The father agreed that he did not pay child support for the child. His Honour made that finding. There can be no error.
The father asserted that the judge made “bias and unfounded remarks to smear fathers (sic) character for not providing toward upkeep of his daughter” (Father’s Amended NOA filed 3 September 2014 para 14).
His Honour said:
119. I am not satisfied that [the father] has discharged his obligations for financial support of [the child]. I am satisfied that his reluctance to disclose his employment and income details are an attempt to mask his failings in this regard. He says that he provides clothing and other items to the child (as a part of his criticism of the mother’s incapacity in this regard). He says that he has started a trust account for the child. Neither of these efforts relieve him of his responsibility to contribute to the ongoing financial support for his daughter. He has not lodged tax returns for some time. He was secretive and evasive about his employment and income. His own evidence though was consistent with him having the ability to obtain employment so as to contribute to [the child’s] support. It does him no credit that he has not done so.
The father conceded that he had not lodged tax returns, although contended he had a good reason for not doing so.
It is not necessary to repeat the father’s evidence to his Honour when asked about his employment and whether it required him to travel within and outside Australia, save to say that his Honour’s conclusions about the quality of the father’s evidence were well founded particularly when regard is had to the father’s lack of disclosure and his answers to questions in cross-examination which were, putting them in their best possible light for the father, unhelpful to him.
This ground is not made out.
Ground 3 - The judge ordered a further family report to be prepared by Dr N
His Honour ordered:
5. That the parents and [the child] attend for family therapy as arranged by the Independent Children’s Lawyer and as directed by the Independent Children’s Lawyer and/or the therapist such to be reportable and with the Independent Children’s Lawyer to obtain a report from the family therapist on affidavit prior to the return date.
The father’s appeal challenged this order, contending at Ground 18 that his Honour had made an “unjust final order design (sic) to force father into submission and to order him to see Dr [N] …”.
Aligned to this complaint is a further “ground” that his Honour, in leaving the choice of therapist to the ICL, allowed the ICL to control the determination of the therapist. It was argued that this compounded what the father had contended was collusion between the judge and the ICL in relation to the outcome of the hearing.
His Honour in fact did not order that the family therapy be conducted by
Dr N. That his Honour left the determination of the therapist to the ICL is entirely anodyne and we reject the sinister implications implicit in the father’s complaint about the ICL’s role and that of the judge.
Finally, his Honour’s findings about the father, specifically his attitudes towards the mother and that he had sought to denigrate and criticise the mother’s parenting to the child led him to have significant concerns as to the long term arrangements for the child, and thus his determination to make interim orders. The implementation of a process of reportable family therapy was entirely consistent with his findings and expressed concerns and no challenge to the order is made out.
The father’s challenge to Order 5 must fail.
Ground 4 - The judge gave no weight to the unchallenged evidence of the father’s witnesses
The father filed affidavits from witnesses supporting his case. None was required for cross-examination.
The father contended at Ground 21 that the trial judge failed to take that evidence into account and as a result failed to find that the “mother had intentionally lied and had made-up her allegations to bring about a change in orders as she did not approve of previous final orders made in 2011 and 12”.
His Honour said:
77. [The father] adduced evidence from his own mother and a number of his acquaintances or associates, each being on affidavit. They were not required for cross-examination. The themes of those affidavits were generally supportive of [the father] in his parenting of [the child] and in his relationship with [the child]. It should be noted, however, that the mother, Dr [N] and Dr [L] all acknowledge a loving relationship between [the child] and her father and that she apparently enjoys his company. However, where issues of particular fact are in dispute and apparently corroborated by the father’s witnesses, I still prefer the evidence of the mother and Mr [W]. For example, the father’s witness, [Mr Z], in an affidavit filed 11 January 2013 at paragraph 7 says:
On Monday 17 December 2012, I have seen [the child] at lunchtime and she is a very happy child. She come to me and told me that: “a big boy is shouting at her at mum’s home.” I become [sic] concerned for [the child’s] safety and welfare. I told [the father] what [the child] just told me and [the father] already knew about it as [the child] told him the same thing.
78. On consideration, the probity of such evidence must be seen in the light of [the father’s] own evidence and the concerns that he subjectively formed. I do not necessarily suggest that [the child] may not make such a statement to [Mr Z], but consider it within the context of this matter and the allegations of the mother as to the personality and historical over-reactions of the father. The father asks me to accept this evidence as corroborative of what he says where [the child’s] statements to him that she had been yelled at by Mr [W]. The issue for the Court however is perhaps not so much whether [the child] made the statement to the father or even the veracity of the statement but, rather, the response by the father over an instance of verbal discipline within a household and family unit of which the child and adult are both ordinarily members. I must consider [the father’s] resultant confrontation of Mr [W] and the mother in the presence of [the child]. Within context and as to [the father’s] level of insight into his child’s needs and the mother’s right to parent and impose discipline on her terms.
His Honour then moved to consider the evidence of the other witnesses on whom the father relied and observed that each was complimentary of the father’s relationship with the child and each significantly critical of the mother. His Honour concluded that he gained “little assistance” from their evidence in determining the issue before him, that is, the effect (if any) on the child of the father’s “direct an (sic) covert denigration of the mother” [79].
His Honour considered and weighed the evidence adduced by the father relevant to the issues to be determined by him. Merely because his Honour did not form the conclusion urged on him by the father does not mean that
his Honour failed to give that evidence any or any sufficient weight.
There is no force in this challenge to his Honour’s order.
Ground 5 - There was no material change in circumstances to justify a change in the existing parenting arrangements contained within the previous orders made on 18 August 2011 and 2 August 2012
We understood this ground to be an argument that his Honour erred in making further parenting orders without first having been satisfied that there had been a sufficient change in the child’s circumstances to warrant further litigation. It must be first noted that the father also attempted to file an initiating application however the mother simply did so first. Further, the father’s application before his Honour sought to reopen the parenting issues and sought that the court make orders different from those then in force. In that application, the father sought an order for sole parental responsibility, albeit, he did not ultimately press for that order.
Thus it seems that the father himself considered that the child’s circumstances warranted a change in the parenting orders as did the mother given her application which also sought a change of parenting orders.
We accept the submission made on behalf of the mother that in any event, the circumstances before his Honour at the time of the trial were significantly changed from those at the time of the making of the earlier orders. For example, since the earlier orders had been made the child had begun to attend school, she was three when the 2011 orders were made, the mother had formed a new relationship and was expecting a child and the mother made significant assertions that the father was denigrating her and undermining her parenting with the child. Indeed, the trial judge made similar findings at [137(a), (c) and (d)].
Even had the father not himself sought parenting orders, his Honour would have been well entitled to reassess the parenting orders that then existed.
There is no force in this challenge.
Ground 6 - The judge discharged existing orders made in August 2011 which constrained the mother’s capacity to remove the child from Australia
By Orders 10, 11 and 12 made on 18 August 2011, the mother and father were restrained from removing the child from the Commonwealth of Australia and the child’s name was placed on the Airport Watch List. In the orders of
2 August 2012, the mother was permitted to remove the child from the Commonwealth of Australia for the purpose of a holiday with the mother’s family in Country R (Order 1). The Airport Watch List Orders that were operative at the time were suspended for the relevant period of travel (Order 6) and the mother was required to provide $15,000 security for the return of the child.
The order restraining the parties from removing the child from the Commonwealth of Australia and the Airport Watch List Orders were, along with all other extant orders, discharged by Order 1 made on 11 July 2014 and no like order was made.
The father contended that in so doing, the trial judge had exposed the child to a risk that the mother would unilaterally remove the child from Australia and would thus frustrate any orders that may be made for the child to spend time with the father.
It was conceded on behalf of the mother that the father sought such an order in his application although it was not the subject of submissions by the father either at the commencement or conclusion of the trial. It is then difficult to see how the trial judge fell into error by not combing through the 15 pages of orders sought by the father in his application to see exactly what the father sought when he himself had made no submission on them.
In any event, since the earlier orders had been in place, the mother had been permitted to leave Australia and take the child with her and visit the country of the mother’s birth and had returned as she had indicated. True it is that she was required by the terms of the order to post a surety in the event that she did not return, a point made by the father in his submissions when he argued that it was the requirement for a surety which caused her to return. That causal connection was not established in the evidence and is mere supposition on the father’s behalf.
However, as was submitted by counsel for the mother, she is bound by the terms of s 65Y of the Family Law Act 1975 (Cth) (“the Act”) which states:
(1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
which thus affords sufficient protection against any unilateral removal of the child.
No error has been established. This ground is not established.
Ground 7 - The judge failed to make orders for the child to spend time with the paternal grandparents
The father sought no such order. He did give evidence that he wished to spend time with the child during school holidays and wished to take the child to Adelaide where his parents lived. In the result the trial judge made no order that the child spend time with the father during school holidays and thus the prospect of the child visiting her grandparents in Adelaide became moot.
There is no basis for this challenge and the ground will fail.
Ground 8 - The judge’s decision was affected by actual bias
This assertion was made by the father in his “grounds”, in his summary of argument and in his oral submissions. For example, in paragraph 143 of his summary of argument, the father claims that the trial judge mocked his profession as a financial services provider by making comments about “counting sheep”. He further asserted that the trial judge had mocked his religious beliefs (paragraph 120 of his summary of argument). When pressed, the father was unable to point the court to the passages in the transcript where this was said to have occurred. We are satisfied, in any event, that there was nothing which would support this allegation.
The husband has not provided sufficient evidence to ground this claim. This assertion is rejected. The challenge is not made out.
Ground 9 - The judge found that the father had denigrated the mother to the child
The contention that the father denigrated the mother to the child was an issue of significance before his Honour.
It seemed undisputed that the child hit the mother and made negative comments to the mother. The father’s case was that this was reflective of a poor relationship between the mother and child whereas the mother asserted that this conduct was the result of the father’s influence on the child.
His Honour found that based on his assessment of the father’s evidence, where issues of disputed fact were to be resolved he preferred the evidence of the mother and Mr W to that of the father [76]. Further he found, again consistently his credit findings about the father’s evidence, that the father had denigrated the mother to the child. In coming to that conclusion, his Honour took into account that the statements and actions of the child were contemporaneous with her visits with the father and contextually linked to him [137(c)].
Of course, having found the father’s evidence lacking in credibility, his Honour was entitled not to rely on it in determining issues of fact. However, in determining this issue, his Honour did not merely move to accept the mother’s assertions but carefully weighed the evidence and supported his conclusion that the father had denigrated the mother to the child with the evidence.
Findings of fact such as this are matters exquisitely the preserve of a trial judge and will only be subject to appellate intervention where it is demonstrated that the finding was not open on the evidence (see Edwards v Noble (1971) 125 CLR 296). In our view the finding was entirely open to his Honour to make and no error is shown.
This challenge is not made out.
Ground 10 - The judge preferred the mother’s evidence to that of the father
His Honour’s reasons demonstrate significant concerns as to the father’s credibility. Some have already been set out in these reasons. His Honour found the father’s evidence to be “evasive and obtuse” [70] and he found the father unable to make concessions or admissions even in circumstances in which the evidence clearly required those admissions to be made [74]. Further his Honour found the father’s responses to questions were “provocative”, for example:
73. … His responses were often provocative, including some to the bench (such as an irrelevant suggestion that this Judge may not have a belief in God). His cross-examination of Dr [N] was provocative as to matters such as her alleged “feminist bias”. His responses in cross-examination were at times personal towards the mother’s counsel.
His Honour made no such adverse findings about the mother’s credibility.
It was entirely open to him to prefer the evidence of the mother to that of the father. Given his Honour’s findings about the father’s credibility, it is no surprise that he preferred other evidence to that of the father.
This ground fails.
Ground 11 - The judge failed to make findings about the events that took place at the mother’s home on 18 December 2012
An issue before his Honour related to events that occurred on
18 December 2012 at the mother’s house in the presence of the father, mother, Mr W and the child. These events occurred following an alleged incident the day before where the father claims that the child told him that Mr W shouted at her.
His Honour said that the mother contended that on 18 December 2012, the father confronted Mr W in front of the child, which caused her to become upset [57]. As a result, on 19 December 2012 the mother sought and obtained an intervention order noting the child as a protected person. His Honour said:
57. … She justified the obtaining of the intervention order accordingly. Her affidavit outlined an escalation in [the child] returning from time with the father armed with apparent critical or demeaning comments of her and coinciding in this escalation with her partnering with Mr [W]. She denied any ulterior motive of preventing [the child’s] time with the father in Adelaide over the Christmas period. She says that the nature of the incident, its antecedents, and its impact on her justified the course she took which thwarted the much anticipated trip to Adelaide for [the father] and [the child] and caused a hiatus for direct time for [the child] and her father.
His Honour further set out the mother’s version of the events that took place on 18 December 2012, including an apparently verbatim account of the father saying to Mr W: “we can do this nicely or the hard way. I am telling both of you – this is the final warning” [60]. His Honour noted that Mr W’s account of the incident was consistent with the mother’s [68].
The judge reflected on this incident in considering the probative value of the father’s evidence in relation to this incident and that of his witnesses at [78] and to which we have already referred. He noted that the issue was not whether the child in fact made the statement on 17 December 2012 ascribed to her by the father of being “shouted at by a big boy” which was asserted to be a reference to Mr W. Rather, the issue was the father’s response to what
his Honour found to be an incidence of discipline within the mother’s household, concluding:
78. … I must consider [the father’s] resultant confrontation of Mr [W] and the mother in the presence of [the child]. Within context and as to [the father’s] level of insight into his child’s needs and the mother’s right to parent and impose discipline on her terms.
His Honour returned to this issue in considering the issue of family violence and said:
131. Issues of family violence per se have been dealt with above. The mother obtained a state court intervention order, including the child, following the event of 18 December 2012. The father also applied for or considered applying for an order. There was much effort and time spent at the trial in respect of the background to the obtaining of the order, the various involvement of Victoria Police and particular police officers, notifications to the Department of Human Services, and State Court events. Suffice for me to say that, on the evidence before me, the confronting behaviour of the father on
18 December 2012 may well have justified such an application by the mother or Mr [W]. Various “threats” of resultant Court applications were probably mentioned by both the father and Mr [W]. The effect of the inclusion of the child in the order is now well documented. I accept that it is unfortunate that [the child] did not have the opportunity to travel with the father to Adelaide at Christmas 2012. However, I am satisfied that the father was, at least in part, the author of his own misfortune. [The father] says that his daughter’s statement that she was yelled at by Mr [W] at the dinner table justifies his confrontation of Mr [W] and the mother in the presence of [the child]. I do not agree. The escalation of this innocuous incident has encapsulated more deep-seated issues between these parents.Thus it is clear that his Honour did make findings about the incident, specifically that the father confronted Mr W and the mother in front of the child.
In his oral submissions, the father argued that his Honour ought to have found that the mother lied about the circumstances of the incident, contending that when the mother said that he confronted her, it was not true, but that the confrontation with between the father and Mr W. His Honour’s findings about the event clearly reject the father’s contention about the incident.
At the trial the father relied on a transcript taken from a recording made during the incident. The father asserted that in fact it was both a recording as to sound and vision and it showed that the mother was not close to the father and Mr W during the confrontation and thus the judge ought to have found that the mother lied when she said that the father confronted her.
Although we did not have any video images taken from the recording, we have had regard to the transcript of the incident. We do not accept from a reading of that document that there is any force in the submission. The transcript sets out the following:
[The father] (to me): “Is he the guy?”
No answer from me
[The father]: “Is he the guy?”
No answer from me:
[The father] (turning to [Mr W]): Listen, my daughter is not happy with you shouting at her. OK? Now, there are 2 things. Keep your mouth shut when you are talking to her. You are not to instruct her about anything. She is not your daughter. She is nothing to you. Now, we can do it nicely or the hard way. I am telling you. This is the final warning.
[Mr W]: Ah…
[The father]: Don’t tell me anything,
[Mr W]: Don’t threatened (sic) me
[The father]: She has complained. OK? Now, you have been told, he has been told.
[Mr W]:OK, we will see you in court.
[The father]: Fine
[Mr W]: And now that I have taken your threats seriously, my lawyer … [recording ends]
(Exhibit A1 dated 5 September 2013)
(our emphasis)
Leaving aside the attribution of the people to whom the father was speaking in the transcript, it is clear from a reading the transcript that the father addressed both Mr W and the mother. The father clearly said “Now, you have been told, he has been told.” There was no submission that anyone other than the mother and Mr W were involved in this discussion therefore when the father said “you have been told…”, he must have been referring to the mother. In any event,
his Honour made findings about that incident. He found it occurred as the mother said. Nothing put to us by the father persuades us that his Honour was wrong to make that finding. This ground must fail.
Ground 12 - The judge failed to order that the child attend a Catholic school
First it must be said that no such order was sought by the father either in writing or in his oral submissions.
The father’s conduct in relation to the school to be attended by the child was however the subject of findings by his Honour who said:
117. Her Honour’s orders from 2011 give sole parental responsibility to the mother. Thus she chose [the child’s] first primary school in 2013. She properly notified the father. His prompt response was to take [the child] to visit other schools of his own choice. Whilst his desire to be involved in all facets of [the child’s] life is admirable, his disregard of Court orders and the mother’s good graces is not. The first year at school is an important milestone for any child. [The father] admits taking [the child] to other schools after the mother’s choice had been notified to both he and [the child]. In cross-examination he seemed oblivious to the likely impact on his daughter. He simply could not acknowledge the impropriety of him doing this given the clear intent of her Honour’s order for sole parental responsibility in the mother. His attempts to justify his actions were unconvincing and left him culpable as to a complete lack of insight into his daughter’s needs or as to a propensity for blatant disregard of Court orders, or both.
Thus there is nothing in the father’s asserted challenges that demonstrate error in his Honour’s determination. The appeal will be dismissed.
Costs
As is our usual practice, we took the parties’ submissions as to the costs of the appeal to save them the time, trouble and expense of making submissions once the outcome of the appeal is determined.
The mother sought an order for costs in her favour against the father in the event that the appeal was successful.
The father argued that he had no capacity to pay any costs and that although he was a trained financial services provider and adviser with the capacity to earn in the order of $2,000 per week, he was not presently working full time in his practice. It was not entirely clear what his source of funds were, but he did say that he was paying rent of $300 per week.
This is a case in which the appeal was not only entirely without merit, it was advanced to include a scurrilous assertion of actual bias attended with malicious intent. As we have indicated, despite the father’s 62 grounds of appeal and hundreds of pages of submissions, not one iota of evidence was offered in support of the assertion and we rejected it out of hand. That the father made the assertion without being able to support it ought of itself to warrant an order for costs.
We are required to consider the provisions of s 117 of the Act in determining whether to make a costs order. The appeal has been wholly unsuccessful. That fact in our view justifies the making of a costs order.
The father’s assertions about his capacity to pay have to be measured against his evidence before the judge as to his profession and his assertion to us that he is capable of earning significant income in his profession. Lack of funds, even indigence, is not a bar to making a costs order and in this case we will make such an order.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Aldridge JJ) delivered on 8 September 2015.
Associate:
Date: 8 September 2015
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