Sullivan & Sullivan
[2021] FedCFamC1A 87
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sullivan & Sullivan [2021] FedCFamC1A 87
Appeal from: Sullivan & Sullivan [2021] FCCA 1287 Appeal number(s): NOA 27 of 2021 File number(s): TVC 876 of 2018 Judgment of: TREE, REES & JARRETT JJ Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Challenge as to parental responsibility and live with arrangements – Discretionary judgment – No error established – Appeal dismissed – No order as to costs. Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499; [1936] HCA 40
Manifold & Alderton [2021] FamCAFC 61
Number of paragraphs: 43 Date of hearing: 6 December 2021 Place: Brisbane (via video link) Counsel for the Appellant: Mr Byrne Solicitor for the Appellant: B C & A Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children's Lawyer: Swanwick Murray Roche Lawyers ORDERS
NOA 27 of 2021
TVC 876 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SULLIVAN
Appellant
AND: MS SULLIVAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
TREE, REES & JARRETT JJ
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Sullivan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, REES & JARRETT JJ:
Mr Sullivan (“the father”) appeals from orders made by a judge of the
Federal Circuit Court (as it was then known) in proceedings concerning the parenting arrangements for the two children of his relationship with Ms Sullivan
(“the mother”).
The children, X and Y (“the children”) are now aged nine years and six years respectively. The mother also has an older child of a prior relationship, Z, who is aged
15 years.
The orders appealed from provide that the mother have sole parental responsibility for the children and that they live with her and spend time with the father on alternate weekends and for half of all school holidays. There were a number of ancillary orders.
The father, by an Amended Notice of Appeal filed 12 August 2021, challenges those orders which relate to parental responsibility, residence and spending time, and seeks a reversal of them so that the children live with him and spend time with the mother. Grounds 2, 3, 4, 5, 6 and 7 are abandoned. The appeal is, in part, supported by the Independent Children’s Lawyer (“ICL”), but opposed by the mother.
After a relationship of nine years, the parents separated on about 17 December 2017, at a time when there was an incident between the parents to which the police attended. Thereafter X lived with the mother and Z, and Y, then not yet three years old, lived with the father. This situation pertained for about six months, not by agreement, but because neither parent would agree to the children living together.
After about six months, the mother removed Y from his pre-school and kept him. The parents entered into a parenting plan which provided for the children to spend alternate weekends with each parent but, after a short time, the mother withheld the children from the father.
On 30 October 2018, a judge of the Federal Circuit Court made interim orders that the children spend time with the father on two weekends out of three.
By the time of the trial which commenced on 22 August 2019, the children had lived with the mother since about June of 2018.
The orders under appeal resulted from a discretionary judgment. The principles to be applied in challenging a discretionary judgment, as enunciated in House v The King (1936) 55 CLR 499 at 505, are well known. The appellant must demonstrate:
·That the judge acted upon a wrong principle.
·That the judge was influenced by irrelevant or extraneous material.
·That the judge mistook the facts.
·That the judge did not take into account some material consideration.
·That the result is unreasonable or plainly unjust.
There is a strong presumption that a discretionary judgment is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627). It is not sufficient that the father establishes that another judge might have come to a different result or that the primary judge did not give to the facts the weight for which the father advocated at trial.
We pause to note that the father’s task is made particularly difficult in circumstances where, as here, the evidence of the family report writer, who recommended that the children live with the mother, was not challenged. The report writer placed significant weight on the sibling relationship between Z and the children in her conclusion that:
[N]either parent presents as being able to encourage and support the children’s relationship with the other parent…
(Family Report dated 31 January 2019, paragraph 110)
It is against those statements of principle that we now consider the grounds of appeal.
GROUND 1
The primary judge failed to engage with the father’s case and assess the evidence and make appropriate findings on the basis of that evidence.
Counsel for the father, in his written submissions relied on two broad categories of evidence to support this ground, being that relating to allegations of family violence and the evidence of the mother’s involving the children in the dispute. It is convenient to consider the ground on that basis.
Dealing first with the evidence relating to family violence, it was the position of each party at trial that the other had been a perpetrator of violence.
The primary judge assessed the competing allegations and concluded (at [14]):
This matter is a fairly finely balanced matter with dreadful behaviours by both parents, in terms of the way they interact with the other parent and their view of the other parent.
And (at [45]):
This case is one where each of the parents’ evidence about each other is completely unreliable. I cannot prefer either of them in terms of their truthfulness as a witness. The mother's evidence was inherently inconsistent on many occasions, and the father's evidence included odd behaviours – perhaps of nervousness – by him, of laughing at various things. But the father’s own attitude towards the mother is so resolutely negative it is hard to see how I could take at face value anything that he says unless there is some corroboration.
There is no challenge in this appeal to the finding that the evidence of each parent is completely unreliable.
Counsel for the father then draws attention to the evidence of a number of incidents which, he submits, supports his position that the primary judge failed to engage with the father’s case and we propose to consider each of them.
On 17 December 2017, the day the parents separated, there was an incident in which the mother alleged she was violently assaulted by the father. On behalf of the father, counsel submits that the police report, which was an exhibit in the trial, does not support the mother’s allegations that the assault was violent or required any further police involvement.
The primary judge incorporated in her reasons an excerpt from the application made by the mother for a protection order in her reasons (at [18]) noting that the mother is “the aggrieved” and the father is “the respondent”:
At the point of final separation, there was an incident to which the police were called. The actual details of the incident are not completely agreed between the parties, and it does not seem to me to be any use in me being overly pedantic about what happened on the day or what findings I might make, but the police record it thus, in their grounds for a protection order application on behalf of the mother:
December 17, 2017 – the respondent violently attacked the aggrieved … in her rental property, leaving her car keys bent and broken and her right hand lacerated, bruised and swollen. The respondent dragged the aggrieved across the front lawn and the neighbours’ property, by enclosing her already damaged hand under his own over the handle of a bag of clothes to mask his grip on her, in front of various neighbours and all the children – Z, X and Y. When the aggrieved called the police, the respondent said words to the effect of, “There’s no orders. The police can’t help you, cunt,” and shoved her repeatedly around the residence. The respondent repeatedly kicked the aggrieved in the shoulder, right arm, and the aggrieved believes he was aiming for her face. When he realised the police were approaching from the street behind, he bent down and quietly said words to the effect, “I’m going to take you through court and fucking destroy you.” The respondent’s entire demeanour changed into a frighteningly calm and composed manner when the police arrived.
No error is asserted in the primary judge’s recitation of the grounds upon which the protection order was sought. Clearly, the primary judge relied, not on the police report as counsel for the father submitted but on the grounds relied upon in the application for the protection order.
Next, counsel for the father submitted that the primary judge was in error in finding that the protection order was applied for by the police when it was the mother who was the applicant. If this is a mistake, it is not material (De Winter and De Winter (1979) FLC 90-605). Further, we are unable to understand how the mistake, if so it were, demonstrates that the primary judge failed to engage with the father’s case.
Counsel for the father refers to a police report of an incident on 15 June 2018, and reports to the police made on 5 November 2018, 23 November 2018 and on 3 December 2018 or in relation to a “street check summary” made by police.
There was no reference made in the submissions by counsel for the father to the
primary judge of any of those specific matters. Counsel for the father did not submit that any particular finding followed from that evidence. Hence the father conducted the trial before the primary judge in a way which is at odds with the challenge now made. No error of the primary judge is established by her failing to make findings she was not asked to make.
Turning then to the complaint that the primary judge did not engage with the evidence of the mother’s involving the children in the dispute, again there were no submissions addressed to the primary judge in relation to this evidence.
However, it is clear that the matter was nonetheless given consideration by the primary judge (at [36]):
The mother is of the view that when she speaks of the father to the children, the children would be wholly unaware that she has a negative attitude. The mother believes that she speaks about the father in some kind of bright or jolly way – they are my words – and that she is always keen for them to talk with her about what they have done at their father’s place, or to be supportive of them having time with their father, such that they might be completely unaware that she has a negative view of the father. Again, that seems unlikely that the children would be of the view that their mother is wholly positive about their father. The mother is so completely the opposite of wholly positive about their father that it would be, it seems to me, completely unlikely that the children would be unaware of that.
In any event, it was not only the mother who was found to have involved the children in the dispute. The primary judge stated (at [34]):
… The father, in his evidence, was of the view that he speaks with the children about how they are coping in life and what they are experiencing, but he believes he does it in a way where he is shielding them from his view of the mother. So he will ask them questions or speak with them about how to assess whether somebody is lying to them. The father believes the mother is a compulsive liar, and that when the children tell him something that they say they have heard from her, his response is to speak with them about making an assessment as to whether somebody is telling them the truth or not.
The primary judge was acutely aware of the negative attitude of each of the parents towards the other and the consequent effect on the children.
This ground is not made out.
GROUND 8
The primary judge was unable to satisfactorily determine the case 20 months after the hearing of the evidence.
In Manifold & Alderton [2021] FamCAFC 61 the Full Court held:
37.… the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions…
It is incumbent upon the father to specify what relevant matters were not taken into account; where the primary judge failed to engage with the father’s case and with the evidence and where she failed to provide adequate reasons for her conclusions.
In so far as counsel for the father has sought to make those challenges in the preceding grounds, he has not been successful. In those circumstances the complaint of delay adds nothing.
This ground fails.
GROUND 9
The decision does not represent a balanced analysis of the evidence.
As cast, this challenge does not comprise a proper ground of appeal. However under cover of it, counsel for the father submitted that each parent had withheld a child from the other in the first six months of their separation but that the primary judge only criticised the father’s behaviour in that respect. However, that submission ignores the unchallenged finding that, at the time of separation, the mother was the primary carer for then two year old Y.
The primary judge stated (at [47]–[48]):
It is certainly also of note that at final separation, the father kept Y in his care. At final separation, Y was two and a half years of age, and for the six months post-separation Y had no contact with his mother. [The father’s] evidence was that he took those steps because he considered that if Y was with his mother, he would not get to see either Y or X, because he considered that the mother would withhold both children from him. And certainly, the mother did not make any arrangements for X to spend any time with the father. The mother says the father did not ask for any time with X and that she was asking for time with Y. The father did not ask for any time with Z either, who at that point in time had been Z’s father-figure.
So it also seems to me that the father’s behaviour at that time, where he was not holding Y because he considered it for any reason other than if he did not hold Y, the mother would not let him see Y, as some kind of – effectively, just a prop in the dispute between he and the mother. That seems to me to be an abusive way of parenting.
However, the primary judge was not sparing in her criticisms of the mother (at [50]–[51] and [66]).
Ultimately, the decision was not based on a comparison of the respective failings of the parents but the deciding factor was that, in the mother’s household, the children would be able to continue their relationship with their brother Z. The primary judge stated (at [69]):
So that brings me back down to this very finely balanced matter, and really, the issue of Z. The children have always lived with Z, except for Y’s six months post-separation. Z is their big brother…
And (at [70]):
… it seems to me that X and Y, having always lived with Z, have him very much as their older brother. For all of his difficulties, for any of his behaviours, for all of his however we might describe them, Z is their big brother. And for them to be separated from him would be a change of significance, and I am not satisfied that it would be a positive change for them to be removed from Z. I am satisfied it would be a negative change for them to be removed from Z. That does not mean that they might not at times have difficulties with Z, or that in fact, Z might not – either deliberately or inadvertently – hurt them in some way, however that might be described or effected, but he is their older brother, and it seems to me he is a very important part in their lives.
This ground fails.
GROUND 10
The primary judge’s discretion miscarried.
Like the previous ground, this is not a competent ground of appeal and, as argued, it was nothing more than an aggregation of all the preceding grounds.
The challenge advanced under this ground is no more successful as a compendium than couched individually.
CONCLUSION
The appeal will be dismissed.
COSTS
In the event the appeal failed, neither the mother nor the ICL sought any order for costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Rees & Jarrett JJ. Associate:
Dated: 16 December 2021
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