Stern & Colli
[2021] FamCAFC 15
•18 February 2021
FAMILY COURT OF AUSTRALIA
Stern & Colli [2021] FamCAFC 15
Appeal from: Stern & Colli [2020] FCCA 795 Appeal number(s): SOA 40 of 2020 File number(s): MLC 7373 of 2017 Judgment of: STRICKLAND J Date of judgment: 18 February 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Allegation of bias – Best interests (section 60CC Family Law Act 1975 (Cth)) – Findings of fact – Injunctions – Weight challenges – Adequate reasons – Expertise of family report writer – Currency of evidence – Notation re Rice & Asplund (1979) FLC 90-725 – No error of law or of fact is demonstrated and there is no merit in any of the grounds of appeal – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC
Practice Direction No. 1 of 2017
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668;
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 103 Date of hearing: 27 October 2020 Place: Adelaide Solicitor for the Appellant: In Person Solicitor for the Respondent: In Person ORDERS
SOA 40 of 2020
MLC 7373 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR STERN
Appellant
AND: MS COLLI
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stern & Colli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
INTRODUCTION
By Further Amended Notice of Appeal filed on 15 October 2020, Mr Stern (“the father”), appeals against certain parenting orders made by a judge of the Federal Circuit Court of Australia on 8 April 2020.
The appeal is opposed by Ms Colli (“the mother”).
In summary, the orders appealed against provided for the time X, born in 2017 (“the child”) is to spend with the father and where changeovers are to take place (paragraphs 3 and 5), for the parties to not be able to discuss with the child’s medical and allied health providers issues in relation to information that may involve the parents’ health (paragraph 6a), and restraining the parties from using, encouraging or allowing any person, including the child, to refer to any person other than the child’s biological mother or father as “mummy” or “daddy” (paragraph 10).
The father seeks that paragraphs 6a and 10 be dismissed, and that certain of the orders comprised in paragraphs 3 and 5 be varied.
RELEVANT BACKGROUND
The parties commenced a relationship in September 2014, and separated in November 2016.
The mother is a professional by occupation [as is] the father.
At the time of the hearing the mother and the child lived in Town A, and the father lived in Town B. There was a distance of approximately 280 kilometres between their respective homes.
The father has two other children with his wife, including a daughter who was born on the same date as the child, and a son who was born in 2019.
The mother, the father and the father’s wife were in a polyamorous relationship at the time that the child and the father’s other daughter were conceived.
The proceedings were commenced by the father in the Federal Circuit Court of Australia on 24 July 2017.
On 5 September 2017, Judge Stewart made interim orders for the child to spend time with the father twice per week in Town A.
In October 2017, the father commenced a two year period of parental leave, becoming his daughter’s primary carer.
In April 2018, orders were made by consent for the father’s time with the child to increase from two to three hours, three times each week.
The mother returned to full-time employment in April 2018, and the child commenced attending day care.
The final hearing was listed to commence on 20 June 2018, but the matter was not reached, and was adjourned to 28 November 2018. Further orders were made by consent providing that the child spend increasing day time with the father and Skype time.
The father and his wife married in 2018.
The matter was again not reached on 28 November 2018, and was adjourned to 3 April 2019. There were further orders made increasing the father’s time with the child, and in particular, providing for one overnight each alternate weekend.
The hearing was yet again not reached on 3 April 2019, and was thus listed with priority for hearing in late May 2019. The hearing finally commenced on 29 May 2019.
THE APPEAL
Following the filing of the Amended Notice of Appeal, and then the Further Amended Notice of Appeal, there are now 11 grounds of appeal. However, some of those grounds are just bald general assertions with the particulars having been removed by the amendments. For example, Ground 6 simply reads:
Her Honour made findings of fact which could not properly be supported by the evidence.
The father has attempted to overcome this deficiency and shore up the grounds of appeal by the material in his amended summary of argument filed on 15 October 2020. I will make further comments about this when I address each ground of appeal.
A further difficulty with the grounds of appeal is that with the amendments to the orders sought in the appeal, it is entirely unclear what the point of some of the grounds of appeal are; they seek to raise matters which, if successful, cannot possibly be relevant to the orders appealed against, and/or to the orders now sought, and thus to an extent they call for nothing more than an academic exercise.
Finally, Ground 13 raises an allegation of “bias”. As confirmed by the father in oral submissions, that is apprehended bias rather than actual bias, but in any event, in keeping with authority, it is necessary to deal with this ground of appeal first, because if sustained, it compromises the integrity of the process and requires remitter of the dispute for rehearing (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, at 611-612).
Ground 13
Her Honour demonstrated bias in her consideration of the parties’ evidence with respect to each other
The principles concerning disqualification on the ground of apprehended bias are well settled. For example, in the case of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The effect of that decision and the principles emanating from it are confirmatory of what was determined in an earlier decision of the High Court in Johnson v Johnson (2000) 201 CLR 488. The principle that sprang from Johnson, and which was confirmed in Ebner, is that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I note also that in the case of Johnson, the High Court said this, at 493:
12The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: The observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(My emphasis)
Finally, I refer to the High Court decision in Re JRL; Ex parte CJL (1986) 161 CLR 342, where Mason J said, at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
(Emphasis added)
The complaints made by the father here as identified in his amended summary of argument, are first, that the “trial judge criticised conduct on the part of the father that she ignored on the part of the mother”, secondly, that the father’s evidence as to various incidents was ignored where the mother gave evidence in relation to those same incidents, and thirdly, that on “certain issues the trial judge considered the impact on the mother alone”.
I will address these complaints in turn.
Criticism of conduct
The first purported example provided by the father at paragraph 27a of his amended summary of argument does not bear out the complaint.
At [277] the primary judge accepted the mother’s characterisation of the father’s conduct vis a vis the child as “too much, too soon, too fast”, but the father complains that his evidence that the mother’s conduct was the reverse, namely too little, too late, too slow, was ignored.
However, it is not the case that the father’s evidence was “ignored”. The plain fact is that the mother’s evidence was accepted, and the father’s evidence was not. That is a quintessential aspect of the task of a trial judge, and her Honour cannot be criticised for undertaking that task, and making the finding that she did.
Next, the father says that he was criticised for seeking variations to orders, and not agreeing to variations sought by the mother, when the same conduct by the mother was not criticised. However, again, this complaint is misconceived. It overlooks the primary finding by her Honour in [40(f)] as follows:
40.I had the benefit of observing both the mother and father in the witness box for a significant period of time. On the basis of those observations and having considered the affidavit material filed by each of them, I make the following general observations:
…
f)Whilst the father clearly has, and wishes to continue to have, a significant parenting role in relation to [the child], the father appears unable to appreciate the impact of his communication style on the mother. It is clear from the mother’s evidence and her demeanour that she finds the father’s constant demands for more time with [the child] to be intrusive and unreasonable.
It is the father’s conduct which is the problem, not the mother’s, and thus it is understandable that her Honour would criticise the father and not the mother.
The final example set out in paragraph 27 of the amended summary of argument fares no better. It relates to the time that the child is to spend with each parent on weekends, and [294] is highlighted. There, her Honour further explained why the father’s proposal insofar as it involved time spent with the child on weekends should be rejected.
The father suggests that her Honour “misrepresented” his proposal, but I reject that submission. The fact that her Honour understood the proposal can be seen from [77] – [79]. In any event, her Honour’s reasons at [294], as well as at [77] – [79] for rejecting the father’s proposal, are soundly based and do not satisfy the test in Ebner and demonstrate apprehended bias.
It also must not be forgotten that the mere fact of adverse findings cannot, without more, establish that the primary judge embarked on the case with a mind closed to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38]).
The competing evidence as to various instances
Here, the father refers to instances where the mother’s competing evidence was accepted, and his evidence was allegedly ignored. However, again, the simple explanation for these outcomes is that her Honour preferred the evidence of the mother over that of the father in relation to the same. That is an outcome that is plainly open to a trial judge, and in no way demonstrates apprehended bias. Again, the Ebner test is simply not met.
Consideration of the impact only on the mother
This complaint primarily relates again to the issue of weekend time. The father suggests that her Honour put weight on the importance of the child’s weekend time with the mother, but ignored the importance of that time with the father. However, again, her Honour’s reasoning for making the order that she did is to be found at [294], as well as [77] – [79], and there is nothing in those paragraphs that demonstrates apprehended bias when the Ebner test is applied.
This ground of appeal has no merit.
Ground 1
Her Honour failed to follow the approach mandated by section 60CC of the Family Law Act 1975 by failing to give any or sufficient consideration to the best interests of the child … in particular with respect to:
a. The benefit to the child of more frequent and longer time with the father
b. The benefit to the child of more frequent and longer time with her siblings
c. The benefit to the child of an order for make-up time
d. The benefit to the child of more regular skype communication with her father and siblings
e. The benefit to the child of skype communication increasing as she ages
f. The benefit to the child of moving the midweek time from public facilities to her father’s home
g. The benefit to the child of changeover taking place part-way
h. The benefit to the child of orders for specific default arrangements for her birthday that she shares with her sister
i. The benefit to the child of orders that facilitate time with her extended family on her father’s side
j. The benefit to the child of an order preventing the other from using a different surname for her than her registered surname
k. The benefit to the child of an order preventing the mother from denigrating the father to medical professionals
l. The benefit to the child of both her parents being fully advised of her medical situation instead of that information being limited for one parent
m. The benefit to the child of supporting her relationship with her stepmother
n. The benefit to the child of being allowed to continue using the name for her stepmother she has used all her life
o. The benefit to the child of the court being able to review parenting arrangements if her father and siblings live closer without her parents incurring the costs of a Rice v Asplund argument
This is a ground which is substantially flawed.
First, there is no question that the primary judge applied s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and considered what was in the best interests of the child. Secondly, the “benefits” that the primary judge allegedly omitted to consider are not drawn from, or identified as, arising from any of the specific factors set out in s 60CC that are to be considered in determining where the best interests of a child lies. Thirdly, it incorrectly assumes that each of the “benefits” were established by the evidence before her Honour. Fourthly, none of the “benefits” set out in b, e, f, h, i, m and the first part of a, bear any relationship to the orders the subject of the appeal, or the orders sought in the appeal, and thus they are irrelevant. Fifthly, it is not a benefit that a trial judge is able to take into account. Sixthly, with the balance of the “benefits” namely, c, d, g, j, k, l, and n, although the father may have argued for these to be taken into account, it is well settled that a trial judge is not obliged to refer in the reasons for judgment to every piece of evidence, or every submission that is presented or made during a hearing (e.g. see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378, per Mahoney JA at pages 385 – 386). The trial judge only needs to refer to those parts of the evidence and the submissions that are necessary for the purposes of the decision that is made. Thus, relevantly her Honour did refer to and discuss the benefits set out in c ([145] – [148]), d ([215] – 220]), g ([233] – [243] and [248] – [250]). With j, as correctly submitted by the mother in paragraph 7 of her summary of argument filed on 19 October 2020:
No evidence was presented at the final hearing that the mother was using another surname for the child. To the contrary, the mother presented the child’s Medicare Card, Birth Certificate and a day-care bill, all of which referred to “X Colli-Stern”.
There is no merit in this ground of appeal.
Ground 2
Her Honour erred in law by making orders for which no or insufficient consideration was given as to how they are in the child’s best interests pursuant to section 60CC of the Family Law Act 1985
This is also a ground that can go nowhere.
First, the “orders” complained of can only be the orders the subject of the appeal, and secondly, it is difficult to see how this is a different ground than Ground 1. Thirdly, in her Honour’s reasons for judgment, her Honour carefully and painstakingly traversed each of the relevant factors found in s 60CC in considering what orders were in the best interests of the child ([192] – [269]).
Nevertheless, in his amended summary of argument the father raises two specific issues in relation to this ground.
First, there is the order providing for communication by Skype. That order provides as follows:
3. The child spend time and communicate with the father as follows:
…
g.via Skype or Facetime each alternate Sunday at 9:00am and each Friday at 6:00pm unless the child is already in the father’s care on either of those times, …
The father claims that that order is “unreasonable and plainly unjust” because it entails a reduction in Skype time from three each fortnight to two. However, I am bemused by this claim because, in fact, the order still provides for three occasions each fortnight, namely every Friday (two) and each alternate Sunday (one). Perhaps what the father is referring to is that that Skype time is only to occur if the child is not in the father’s care at the time in any event, and it seems that on one of the Friday nights the child will be in the care of the father pursuant to the order increasing the time that the child is to spend with the father. Indeed, in paragraph 9 of her summary of argument in response, that is what the mother points out. Namely, that in effect, in the final orders one Skype call a fortnight is replaced by the child spending time in person with the father from Friday afternoon until Sunday afternoon on alternate weeks. Thus, I agree with the mother that it is not possible to label the order as “unreasonable and plainly unjust”.
The father also complains that her Honour failed to accede to his application “to increase Skype time going forward”. However, her Honour acknowledged that the father made this application ([3(e)]), and identified it as an issue at [34]. Importantly though, the mother’s evidence was that there were difficulties with the Skype communication, and some of which were conceded by the father ([139] – [144]), and the family report writer was opposed to Skype occurring more frequently ([176] – [179]).
Thus, there was ample justification for her Honour to not increase the frequency of Skype communication, and no error in the exercise of her Honour’s discretion in that regard has been demonstrated.
Secondly, the father suggested that there were no reasons given by her Honour for commencing the child’s time with the father at 3:00pm on the Friday rather than at 10:00am (see order 3(b)(ii)).
The short answer to this complaint is that this order applied “during school term periods”, and although the child was not yet of school age, the order necessarily provided a consistent basis leading into once the child did commence school (e.g. see order 3(d)(i)). The concession to the fact of the child not yet attending school was order 3(b)(i) providing for time each Wednesday from 10:00am until 5:00pm.
Again, it has not been demonstrated that her Honour has erred in the exercise of her discretion in making the order complained of.
There is no merit in this ground of appeal.
Ground 3
Her Honour erred in law by making injunctions without any or sufficient reason as to how they are in the child’s best interests pursuant to section 60CC of the Family Law Act 1975
This ground appears to be a repeat of Ground 2, but specifically in relation to orders 3(g)B, 6a and 10, which are orders the subject of challenge in this appeal.
Order 3(g)B provides as follows:
3. The child spend time and communicate with the father as follows:
g.via Skype or Facetime each alternate Sunday at 9:00am and each Friday at 6:00pm unless the child is already in the father’s care on either of those times, provided that the father, his servants and/or agents be and are hereby restrained by injunction from:
B.taking photographs of the mother’s home; and
…
Order 6a provides as follows:
6.The parties be authorised to discuss with the child’s medical and allied health providers any details of the child’s medical health and/or needs, subject to the following conditions:
a.the parties discuss issues specific to the child and not in relation to information that may involve the parent’s health;
…
Order 10 provides as follows:
The parties be restrained by injunction from using, encouraging or allowing any other person, including the child, to use the term “mummy” or “daddy” or any derivatives of same, to refer to any person other than the biological mother and father of the child.
As to order 3(g)B, the father took a photograph of part of the mother’s house while using Facetime, and annexed it to his trial affidavit. In paragraph 85 of that affidavit filed on 30 June 2018, he explains that he took this screen shot to demonstrate how it was difficult for the child and him to see each other. He now claims that her Honour failed to take into account his argument that being able to do this was a benefit to the child. However, that does not necessarily follow; her Honour being made aware of the opposition by the mother to the father taking photographs, namely it fails to respect her privacy, and the argument of the father, determined that there was “no reason for the father to take photographs of the mother’s home during Skype calls” ([243]), and made the order sought.
Again, the father has failed to demonstrate that her Honour erred in this exercise of her discretion.
As to order 6a (and which is also relevant to order 3(g)B), her Honour found that the father exhibited controlling behaviour towards the mother (see [23], [206], [245] and [278]) in an attempt to unnecessarily intrude into her life. Thus, it is not surprising that her Honour responded to the mother’s concern expressed in her affidavit, that the father would try to find out about her medical issues when discussing the child’s health with health providers, by making the challenged order. Certainly the father denied in general terms the mother’s allegation in paragraph 195 of his affidavit filed on 13 June 2018, but given the totality of the evidence, and the fact that the mother and the child have the same doctor, it was open to her Honour to make the order. Importantly, the order still enables the father to obtain information relevant to the child’s health and wellbeing, and there is no appealable error by her Honour.
As to order 10, the father claims that her Honour erred in making that order when it goes beyond the situation it was intended to cover, where there was no identified benefit to the child in making the order, and where there was no evidence of any harm to the child that justified the order.
However, as with many of the complaints of the father, he has failed to see beyond his own views of what he assesses as being in the child’s best interests. As her Honour found, it was completely inappropriate for the father to allow and encourage the child to refer to the father’s wife as “mummy Ms F”, and to typically disregard the mother’s wishes (e.g. see [86] – [90]). The mother’s view on this needed to be respected, and the family report writer supported the mother’s position, suggesting that there were other alternatives which could be adopted. Indeed, the family report writer opined that its use was of limited benefit and raised more issues than it met.
Her Honour said this in relation to this issue:
248.In relation to the use of the term ‘mummy Ms F’, the mother has given evidence, which I accept, that she finds it upsetting for the father to allow and encourage the use of this term by [the child].
249.The family consultant gave evidence that caution ought to be exercised in relation to this issue. Moreover, when asked about whether there was any benefit to [the child] in using this term as a means of supporting her sense of belonging in the father’s home, the family consultant said it was ‘limited… and… it raises more issues than it perhaps meets’.
250.On the basis of the totality of the evidence, I am satisfied that it is in [the child’s] best interests for the parties to be restrained from using or allowing any other person to use the term ‘mummy’ or ‘daddy’ or any derivative thereof in relation to [the child] for any person other than [the child’s] biological mother and father.
The father suggests that the order prevents his wife being referred to as the child’s “stepmother” and prevents her from being referred to as “mummy” or “mum” by her own children in the child’s presence.
During the hearing of the appeal it was discussed that the problem in relation to the second issue arises because her Honour did not in the order include the words “in relation to [the child]” which appear in [250]. Indeed, it was even discussed that by consent the appeal might be allowed in relation to this issue, the order set aside, and the discretion re-exercised in an attempt to better convey the intention of her Honour. However, having reflected on this prospect, I do not propose to do that. The order can stand on the basis that in light of her Honour’s reasons, it cannot be interpreted in the way the father submits.
Thus, there is no appealable error here, and this ground of appeal also fails.
Ground 4
Her Honour erred in law by failing to give any or sufficient consideration to the final orders sought at trial by the father, being those in his case outline filed on 21 May 2019 which she disregarded without giving any or sufficient reason
This is a ground which simply cannot succeed, and I do not propose to individually address the minutely detailed examples provided by the father in his summary of argument where he claims that her Honour failed to consider various of the orders sought by him. That is not only unnecessary, but I note that a number of those examples are the subject of other grounds of appeal, and have been dealt with in that context. They include the “benefits to the child of the father’s proposed spend time proposals” and the “increase in the frequency of Skype time”.
In essence, this ground challenges the adequacy of the reasons provided by her Honour for the orders that she did make.
There is of course an obligation on every trial judge to provide reasons for judgment, but that obligation requires only articulation of the essential basis upon which the decision is reached, so that the parties (and the Appeal Court) can understand the reasoning, and so that justice can be seen to have been done (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 463 – 464). It is readily apparent from a perusal of the reasons for judgment provided by her Honour that that requirement has been satisfied.
As for issues such as the place of handover and make-up time, her Honour referred to the same at [135] – [138], and [145] – [148] respectively, but then plainly did not see the need to take them any further. That does not demonstrate appealable error.
There is also one other principle in play here that warrants mentioning, namely, the following well-known comment by Kirby J in AMS v AIF (1999) 199 CLR 160 at [150]:
…An 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 require that it be re-exercised on a retrial.
(Footnotes omitted)
Plainly this principle applies not only to this ground of appeal, but generally to the appeal itself.
There is no merit in this ground of appeal.
Ground 5
Her Honour erred in law in not giving any or sufficient consideration to the submissions filed by the appellant on 27 June 2019
This is yet another misguided ground of appeal. At its highest it is a weight challenge, and at its basest it is nothing more than a submission that her Honour should have accepted the father’s submissions, regardless of the evidence and the submissions of the other party.
The hurdles in the path of a successful weight challenge are well-known. For example, Stephen J said this in the High Court decision of Gronow v Gronow (1979) 144 CLR 513 at 519 – 520.
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.
(Also see per Latham CJ in Lovell v Lovell (1950) 81 CLR 513 at 519)
Here, no error of law or mistake of fact is demonstrated, and reversal merely on issues of weight is not warranted.
Again, there is no merit in this ground of appeal.
Ground 6
Her Honour made findings of fact which could not properly be supported by the evidence.
This is another ground of appeal that is misconceived and cannot succeed.
The first thing to note is that, apart from this ground being nothing more than a bare general assertion which can have no prospect of success by itself, the amended summary of argument in support of this ground in fact ventures outside the ground of appeal. At paragraph 18 of the amended summary of argument the father sets out what he describes as the “findings of fact that were plainly wrong on the evidence”; at paragraph 19 he sets out the “findings of fact that were plainly unreasonable on the evidence”; and at paragraph 20 he sets out the “findings of fact against the father that could not reasonably be found on the evidence”.
Secondly, in total the father identifies and seeks to argue close to 30 alleged errors of fact spread over almost five pages in his amended summary of argument.
Thirdly, as identified by the mother in paragraph 19 of her summary of argument, the father has failed to comply with paragraph 4.2 of Practice Direction No. 1 of 2017 which provides as follows:
4.2 Where a party intends to challenge any findings of fact, the summary must:
a) identify the error (including any failure to make a finding of fact);
b) identify the finding that the party contends ought to have been made;
c)state concisely why the finding, or failure to make a finding, is erroneous; and
d)refer to the evidence to be relied upon in support of the argument (including any reference to the relevant page(s) of the appeal books and transcript).
The upshot of all that is that again this Court does not propose to individually address all of the alleged errors of fact; it is unnecessary and unreasonable to have to do so.
In reality, this ground of appeal is nothing more than an exercise in the father rerunning his case at trial, repeating his arguments, and claiming that the primary judge should have accepted his version of the facts.
The quotation from Kirby J in AMS v AIS set out in [70] above is apt. Further, and in any event, a review of the alleged errors of fact plainly does not satisfy the requirements set out by the High Court in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43] as follows:
…A court of appeal should not interfere with the judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences.
This ground of appeal has no merit.
Ground 9
Her Honour erred in law in making orders that do not comply with s60CC(3)(b) of the Family Law Act 1975 in that they are unlikely to facilitate the child’s important relationships with her siblings and stepmother, in part because they rely on the child’s siblings undertaking extreme amounts of travel indefinitely
The first point that needs to be made here is that the only “orders” that this ground can cover are the orders the subject of the appeal, and specifically those orders that are sought to be discharged or varied in the appeal.
Secondly, this is yet another example of the father complaining that the orders her Honour made did not accord with his views of what is required to meet the best interests of the child. To repeat, that does not establish appealable error.
The fact is that her Honour was acutely aware of the differing proposals of the parties, and her Honour determined that the father’s proposals were not in the child’s best interests. That conclusion was open to her Honour, and nothing has been put that persuades this Court that her Honour erred in that regard.
Indeed, specifically addressing the issues of fostering the relationship of the child and her siblings, her Honour said this at [220]:
In circumstances where the parties live such a significant distance from each other there will inevitably be limitations on the capacity to facilitate time between [the child] and her siblings. The proposed orders however provide ongoing and regular contact between the children and meet the needs to continue to facilitate these important relationships in [the child’s] life.
This ground of appeal fails.
Ground 11
Her Honour erred in law in putting undue weight on expert claims made by the family report writer that were not supported by her expertise, such as her opinions on child psychology, and contrary to the specific evidence about the child on those issues that were before the court.
This is another ground of appeal that cannot be maintained.
The time to challenge the expertise/qualifications of an expert witness is either before or at the commencement of the giving of their evidence.
The family report was dated 18 March 2019, and thus the father had ample time to raise any issues about the family report writer’s qualifications or expertise well before the commencement of the hearing, and the giving of evidence by the writer. However, there is no evidence that the father took up that opportunity. Nor is it the case that when the family report writer commenced to give her evidence, the father challenged her qualifications and/or her expertise.
It was clearly open to her Honour to receive and accept the evidence of the family report writer, including in preference to any evidence of the father, where there was a conflict. In these circumstances there is no merit in this ground of appeal.
Ground 12
Her Honour erred in law in failing to consider properly or at all the age of the evidence on which she relied in circumstances where significant time had passed between the family report writer seeing the child (then 21 months old) and the final judgment (then almost 3 years old), and where she failed to consider sufficiently or at all more recent filed affidavit evidence.
The difficulty with this ground of appeal is that the only submission made in support of it in the father’s amended summary of argument is the assertion that, “[t]his was a material consideration ignored by the trial judge”.
Clearly that does not assist in understanding this ground. There is no detail of the alleged error, and nor the basis on which it is said that this alleged error has affected the orders that her Honour made, and which are the subject of the appeal. Without such detail it is open to respond by simply making the opposite assertion, namely that her Honour did take into account “the age of the evidence”, or “more recent filed affidavit evidence”, whatever that refers to. Indeed, this can be no more than an unsuccessful weight challenge.
The father sought to elaborate on the meaning of this ground in his oral submissions, but that did not take the matter any further, and importantly there was still a failure to demonstrate any appealable error here by her Honour.
Relevantly, I also note that there was no application made by the father to the primary judge to reopen the hearing, either to recall the family report writer, or to seek an updated family report.
A final comment as to the “age of the evidence” insofar as it relates to the evidence of the family report writer, is that as the mother points out at paragraph 30 of her summary of argument:
…The child was 21 months old at the family report, 24 months old at the time of trial and 35 months old when final orders were handed down. …
Thus, in fact, there can be no issue about “the age” of the report and the oral evidence of the family report writer.
There is no merit in this ground of appeal.
Ground 14
Her Honour erred in law in failing to properly or at all consider the benefit to the child in the situation where the father moves closer to her home, of a notation facilitating the matter returning to court without the parties incurring the costs of a Rice v Asplund [(1979) FLC 90-725] argument
This ground can be given short shrift. It is not open to a trial judge to make an order or a notation as sought by the father. Indeed, even if it was made, it could not prevent a Rice v Asplund submission being made, when and if it was sought to vary the orders.
This ground of appeal has no merit.
CONCLUSION
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 18 February 2021
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